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Posted by on Jul 9, 2005 in At TMV | 0 comments

A Sign Judith Miller Jailing Is Already Changing Journalism

And here it is for you: a living, breathing example of the “chilling effect.”

We are shifting to new era involving leaked documents due to the jailing of New York Times reporter Judith Miller: a newspaper reports it’s holding back on publishing two stories:

CHICAGO — Plain Dealer Editor Doug Clifton says the Cleveland daily is not reporting two major investigative stories of “profound importance” because they are based on illegally leaked documents — and the paper fears the consequences faced now by jailed New York Times reporter Judith Miller.

Lawyers for the Newhouse Newspapers-owned PD have concluded that the newspaper would almost certainly be found culpable if the leaks were investigated by authorities.

“They’ve said, this is a super, super high-risk endeavor, and you would, you know, you’d lose,” Clifton said in an interview Friday afternoon.

“The reporters say, ‘Well, we’re willing to go to jail, and I’m willing to go to jail if it gets laid on me,'” Clifton added, “but the newspaper isn’t willing to go to jail. That’s what the lawyers have told us. So this is a Time Inc. sort of situation.”

Both Miller and Time magazine reporter Matthew Cooper faced jail on contempt charges for refusing to identify confidential sources, but Time agreed to hand over Cooper’s subpoenaed notes when the U.S. Supreme Court refused to hear the reporters’ appeal. Cooper later agreed to testify to a grand jury, saying his source had given “express personal consent” to be identified.

Clifton declined to characterize the two stories, saying only they were based on material that was illegally leaked.

This is always a prickly issue since it involves illegally leaked documents and whistleblowers. But you can say:

  • A newspaper holding back (presumably accurate) stories is good news for government officials of BOTH parties — if this holds.
  • The venues for whistle-blowers to get out their (presumably accurate) “do you know what’s going on here?” info is severely constrained.
  • You can see that this is a shift due to the difference in attitudes of the reporters (still schooled in the traditional journalistic culture of using illegal documents and standing by sources) and the newspaper’s legal department (it’s too risky to do this now based on the way the court has ruled).

The bottom line is that newspapers and commentators now urging stronger shield laws to protect journalists are deluding themselves: the present trend is clearly for the erosion of the always-fragile shield laws, which were never easy to totally sell to the public.

There was always the question “why should journalists be above the law,” although up until recently the journalists were protected by the law in many court cases. (NOTE: Be sure to read comments under this post. A journalism professor says we are wrong about that). Now there is also the question: “why shouldn’t bloggers be protected by the law too if journalists are protected by the law” that some have raised. That sparked a big debate, too.

If this paper’s action (or inaction) represents a trend (it’s too early to tell) then it would mean a longtime constraint has been removed from government officials of ANY party anywhere. Today it certainly does seems as if whistle blowers now seemingly have a softer whistle.

Kid, Don’t Fall For “Free Press” Hype
Kathleen Parker:

Without reporters who will protect those who tell dangerous secrets, the same people who applaud Miller’s incarceration will know only what the government wants them to know. I’d rather risk the occasional anonymous scoundrel — or suffer the institutional humiliation of a bad actor posing as a journalist — than leave fate to the whims of men and women enjoying the hubristic intoxication of power and their own manufactured myths.

May Judith Miller’s tribe go forth and multiply.

Editorials on Miller jailing
Japanese newspaper editorial on case
Times of India editorial
Washington Post’s Howard Kurtz was surprised about how little sympathy Miller’s jailing has stirred up in the U.S. Read his piece in full but here’s a key quote:”In a larger sense, though, the tepid public reaction to the jailing of Miller and the near-jailing of Cooper reflects the sinking approval of journalists and their constant use of inside sources without names attached.”

UPDATE: He left a comment in comments but we know Arguing With Signposts is done by a journalism prof. So we do stand corrected.

Read his post where he points out the realities of shield laws HERE. Read it all but here’s a small taste 4 U:

Journalistic privilege has always been a hard sell because courts are loathe to extend privileges beyond the classes that already have them (lawyer/client, doctor/patient).

Certainly, a national shield law would clarify the maze of state laws and court rulings, but it would not – should not – grant journalists an absolute privilege from revealing confidential sources. Indeed, one wishes the Supreme Court had taken Miller’s and Cooper’s appeals just so the issue could be straightened out once and for all.

And journalists have been operating under this maze since the 1970s. If anything, the use of confidential sources has exploded despite such a patchwork of law.

. Daily Kos echoes this view:

Despite the kvetching over Judtih Miller and jail the First Amendment and all, reporters have never had an absolute right to protect sources. Never. It was one of the first lessons learned in media law classes. The prosecution has always had a right to demand information from reporters if, and only if, other avenues of investigation into a crime are exhausted.

At least eight reporters have been jailed in the past 10 years or so for refusing to divulge sources (nine, now with Miller). It’s an occupational hazard of sorts.

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