Judges as Plumbers
 

Judges as Plumbers
By WILLIAM SAFIRE

Published: December 13, 2004


Washington — Activist federal judges in the District of Columbia and Providence, R.I., have already thrown two chilling strikes at journalists for refusing to betray their sources. In San Francisco, a third strike against reporters' ability to gather the news may be on the way.

This sudden wave of judicial repression, unless checked quickly by higher courts or by Congressional action, will make it much easier for the government to deny a citizen's right to know about wrongdoing by every miscreant from corrupt officials to sports heroes.

One year ago, baseball's leading slugger, Barry Bonds, was called before a federal grand jury in the Northern District of California investigating steroid use by athletes to enhance performance. He admitted using a "clear substance" he said he thought was a muscle rub provided by his trainer, who has since been indicted.

The secret Bonds testimony, along with admission of steroid use by Jason Giambi, the Yankee, was reported by The San Francisco Chronicle.

As a result, baseball fans are dismayed and infuriated; the Senate Commerce chairman, John McCain, threatens legislation unless the "national pastime" cleans up its act; Major League Baseball's see-no-evil officials belatedly promise to deal with the worst scandal since the Black Sox of a century ago; even the players' union may consent to more than one drug test per season.

What will happen, now that this stunning news has finally been brought before the public? No, not retribution for the wrongdoers or even an asterisk next to records broken of unhyped athletes of the past.

Such justice is secondary to the new vogue of leak-plumbing that has seized the federal judiciary. Inspired by the sentences for contempt imposed in D.C. on Judith Miller of The Times and Matthew Cooper of Time, and on Jim Taricani, the TV reporter in Rhode Island, a judge in San Francisco is urging the Justice Department to conduct an investigation of who brought the evidence of steroid abuse into public view one year after the explosive testimony was taken.

If the new plumbing pattern is followed, Chronicle reporters will be threatened with jail for contempt unless they reveal who provided the transcripts of grand jury testimony (which the paper had the First Amendment right, and journalistic obligation, to print). I cannot imagine the newspaper burning its source.

Stipulated, as lawyers say, that grand jury testimony is secret, protecting the privacy of reluctant witnesses. If the source violated an oath, that was wrong. But it is the publication's obligation to the public to publish what it considers newsworthy - and not to assist the government in punishing the provider of that news.

Counters the court cohort of coercion: isn't every citizen obliged to give sworn testimony to help the government enforce the law?

The answer is no. Government may not compel a man to testify against his wife, nor doctor against patient, nor priest against penitent, nor lawyer against client. The law has extended this "privilege" to psychologists and social workers, on the theory that society is ill served by erosion of trust within relationships dependent on such trust. Certainly the public interest in the robust and uninhibited flow of information should continue to protect confidential relations between source and journalist (as more than 30 states now do through "shield" laws).

Here's the rub: no privilege is absolute. Constitutional rights sometimes conflict. Extreme example: Everybody - spouses, doctors, lawyers, clergy, journalists, bartenders - must break any confidence to prevent a murder. We are expected to use common sense in balancing our right to remain silent with our obligation to bear witness.

That good sense is being swept away today by leak-happy prosecutors and activist judges. This trend toward the jailing of journalists for protecting the free flow of news is an abuse-of-power abomination. If higher courts can't control the plumbing fashionable below, it's up to Congress to enact a federal shield law.

Liberals may now be fearful of opposing mindless media hatred, but why are principled conservatives not aroused by imperial judges? The founders ensured freedom of the Fourth Estate as a check against the powers of all three branches of central government. Most states are doing their part. Pass that federal shield law before a judiciary on steroids throws Strike 3.

-Rudey

Re: Judges as Plumbers
 

A neocon phrase about Republican-appointed judges in the opening sentence? I stopped reading...

Re: Re: Judges as Plumbers
 

1) Do you ever make relevant comments?

2) Do you ever make intelligent comments?

3) Neo-con phrase? If you don't know about something, don't make an accusation. Now I know you're about as country as a chicken coop, but this isn't a "neo-con phrase".

4) This isn't about Democrat or Republican.

-Rudey

I do see a rise in journalists being punished or threatened with punishment for protecting sources. Now, this is purely empirical evidence on my part; I'm not entirely sure of the numbers, and it may just be that there's more publicity about recent cases.

It's something that strikes a chord with me as a former journalist. Protecting sources is a vital part of being a journalist, and it's a slippery slope when that right is taken away. It's a sticky issue to be sure.

There was a great op-ed in the Times around 2-3 weeks ago discussing this by a law professor who said the best solution would be something that allows journalists to publish freely without naming their sources unless it endangers someone like revealing the identity of a CIA operative.

-Rudey

It's not a good situation when the judiciary resorts to punishing a reporter rather than use traditional methods of investigation to "stop a leak."

There is a middle ground in this whole thing, but too many people (both journalists and the justice system) want an all-or-nothing approach.

It's an extremely important issue that needs to explored on all sides.

I'll have to look for that editorial - thanks for the head's up.

RTNDA Calls on Congress To Pass Federal Shield Law Protecting Reporters

WASHINGTON -- The Board of Directors of the Radio-Television News Directors Association has adopted a resolution in support of a federal shield law. A shield law would protect reporters such as Jim Taricani, who was sentenced today to six months in home confinement for refusing to name a confidential source.

Taricani, a reporter at NBC affiliate WJAR-TV in Providence, RI, was convicted of criminal contempt in federal court November 18 because he would not disclose who had given him an FBI videotape related to an investigation of corruption in his local government.

"Jim Taricani has been placed in this position because the law does not recognize that reporters are obliged to protect the confidentiality of their sources," says Barbara Cochran, RTNDA president. "An increasing number of journalists are facing loss of personal liberty because of their efforts to inform the public of wrongdoing. It is time for a federal shield law to protect reporters like Jim and those facing contempt of court rulings in other ongoing investigations."

Thirty-one states and the District of Columbia have shield laws. To read RTNDA's call for a federal law, visit www.rtnda.org/foi/shield.shtml.

"Just because you (expletive rhyming with 'hit') everyday doesn't make you a plumbing expert."

What does that comment have to do with this thread that's a year old????