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September 13, 2007
Who is a Journalist?
By
Jack D. McNamara
Labor
Day last week brought us our latest gift from the Bush Administration.
One hundred Mexican trucking businesses now have full access to the
highways of the U.S.
A gift of equal generosity was provided last year by a U.S. Department
of Justice (DoJ) prosecutor, Patrick Fitzgerald.
Fitzgerald prosecuted Vice President Richard Cheney’s lawyer, Lewis I.
“Scooter” Libby for lying in the Valerie Plame Wilson case. Someone in
the Bush Administration leaked the fact that Mrs. Wilson was a covert
CIA agent, a felony. Fitzgerald was appointed a Special Prosecutor. He
could not convict whoever leaked the name, but he did convict Scooter
Libby for lying to a grand jury about the circumstances of the case.
This was a case which sent the chattering classes into the high reaches
of the trees. Some howled for the pelts of high Bush Administration
officials … others screamed No foul. It was business as usual in
Washington.
But one business was changed — journalism.
Mr. Fitzgerald secured his conviction of Libby with the testimony of
government agents. He also secured the testimony of several high
profile journalists, one of whom went to jail for 85 days before she
agreed to testify. The journalists, their lawyers, their publications
and their professional associations protested mightily.
The disclosure of Mrs. Wilson was of course effected in the press.
Journalists were told of her employment and they published that fact.
Using a new emphasis of the existing law, Fitzgerald subpoenaed the
journalists and demanded their testimony. They, to one degree or
another, refused to testify. The judge jailed several of them in
contempt. Ultimately all the journalists gave up their information of
l’affaire Libby and told the judge, the prosecutor, the juries, and the
public what they knew. Showmen all, they sunk Mr. Libby, who was
convicted. President Bush, who otherwise frequently thunders “Bring
them to Justice,” quickly commuted Libby’s sentence, thereby insulting
everybody involved in the case.
What changed for journalists is that any prosecutor almost any day can
now drag reporters and editors into court as de facto agents of the
state.
The best lawyers in America could not protect the anonymous source
privilege to which journalists had become accustomed.
Accordingly, media persons of every stripe and level have been
scurrying to construct and enact statutes empowering journalists with a
privilege not to be forced to testify in certain circumstances. In the
U.S. Congress, the proposed legislation is called the Free Flow of
Information Act. In the Texas Legislature a bill, SB 966, almost passed
last session.
But there are problems.
In order to give journalists a “shield” — i.e., a law permitting the
journalist to preserve the confidentiality of a source — the statutes
must define the term “journalist.”
This is a feat which has not been accomplished in 200 years of American
journalism. The idea that government will define journalism is
contradictory to the First Amendment’s injunction that Congress will
make no law regarding freedom of the press.
In Colonial America citizens knew who the journalists of the day were
(even though they didn’t use that word). They were either the pols
themselves, who wrote their own copy in those days, or they were the
ink-stained wretches pulling the lever on the printing press. But
neither the Constitution nor any statute since defines “journalist.”
As the legislators have wrestled with this problem they have
encountered what appears to be an insoluble conundrum. Like George
Washington, all the respectable pols detest one particular form of
communication — blogs. As George Washington was angered by the
newspapers, today’s respectable pols are infuriated by the blogs. The
“Web log,” or blog, is new and it is a form of communication with few
rules. Respectable pols want to deal with respectable problems, so many
of the proposed rules define bloggers out of the business of
respectable journalism.
No can do. Bloggers in form and content are close to the example of
America’s first journalists, the printers. They exercise “precisely the
sort of speech that the Framers intended to protect: political speech
…” Tim Rutten, “How to decide who gets a shield,” latimes.com, August
18, 2007.
We are all journalists … if we want to be. Anyone with access to a
computer can be a publisher, editor, reporter, or all three at once.
American journalism is about the free and individual exercise of
conscience which speaks out. •
(Also
published by the Big Bend Sentinel of Marfa, Texas September 13,
2007.)
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