June 28, 2005

"The media lived on borrowed time for a long time."

Adam Liptak has this piece in the NYT about the decline of the notion that mainstream journalists are entitled to special First Amendment protections:
"We're seeing outright contempt for an independent press in a free society," said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. "The fact that courts have no appreciation for this is new, is troubling, and you cannot overestimate the impact it will have over time."...

Professor Kirtley said the legal turning point came in 2003 with a decision written by Richard A. Posner, an influential federal appeals court judge in Chicago. Judge Posner wrote that lower courts had often misread and failed to follow the holding of a 1972 Supreme Court decision, Branzburg v. Hayes, which rejected First Amendment protection for reporters facing grand jury subpoenas.

Professor [Rodney A.] Smolla said news organizations had for 30 years managed to convince lower courts that Branzburg, decided on a vote of 5 to 4, held the opposite of what its majority had decided. While the majority opinion had been fairly clear, lawyers for news organizations had seized on a brief and enigmatic concurrence by Justice Lewis F. Powell Jr. to convince the courts that they should recognize some level of protection.

That seemed to end yesterday in the Supreme Court, which upheld without comment lower court decisions ordering that Judith Miller of The New York Times and Matthew Cooper of Time magazine be jailed for refusing to testify about their sources in an investigation into the disclosure of a covert C.I.A. officer's identity.

"The media lived on borrowed time for a long time," Professor Smolla said, "as very able media lawyers managed to spin a loser into a winner."...

"The federal judiciary, from the Supreme Court down, has grown very skeptical of any claim that the institutional press is deserving of First Amendment protection over and above those of ordinary citizens," Professor Smolla said. "The rise of the Internet and blogger culture may have contributed to that. It makes it more difficult to draw lines between the traditional professional press and those who disseminate information from their home computers."


Slac said...

It's hard for me not to see this as a good thing. Although I'm aware of the some of the more fancifical implications, the media is progressively just losing value.

I recently watched (via C-SPAN.org) all three and a half hours of last week's Senate Armed Services Cmte. Hearing on Military Operations in Iraq. Even though I'm a regular C-SPAN watcher, I've never felt more informed in my life. The gravitas made everyone's personality so clear. By comparison the media outlets are just a mass of mystification.

Ironically, how the media relates to our military operations in Iraq was an important topic of discussion.

I highly recommend everyone to at least watch the question/answer session.

Walter said...

I think Jane Kirtley is assuming her conclusion.

The press can be free and independent without reporter shield laws. If anybody has a reason why the necessary to a free and indepentent press, could you post why? Second, if it is necessary, does that mean that we didn't a free and indepentent press prior to the 1972 ruling?

Eh Nonymous said...

Hey all.

What _I_ want to know is (without making the effort to go read the old S. Ct. case) that if the case was 5-4, and the concurring opinion has an enigmatic passage, why _isn't_ that the proper place to look? The 4 opinion plurality whose outcome won doesn't get to say what the law is, only the outcome. The swing vote rules... similar to the way O'Connor (or whoever's hanging on the 5-4 winning edge) makes the real rules.

Back when the Supreme Court still worked that way (it doesn't anymore; Scalia's as likely to be dissenting, joined by Ginsburg and Souter, as any other arrangement), you could rely on liberals to lib, conservatives to serve, and O'Connor to decide case by case. So the law was, if O'Connor buys it, it wins.

Now, of course, we're past all that. Decisions are nice and predictable. Scalia will uphold unlimited federal power based on non-originalist grounds, O'Connor and Thomas will dissent when the liberals harm the poor and powerless, and all's right the world. Boy, these are strange times.

Steven said...

Like any other professional group (lawyers and doctors come to mind first, but see also teachers, plumbers, and a vast array of others), the journalist profession has tried to establish itself as a privileged class. This has included not just efforts to gain immunity from the duties of other citizens, but through "campaign finance reform" an attempt to make itself the exclusive mediator of policy questions. Like any other class seeking privilege for itself, it will not make a bare assertion that it deserves special treatment for its own sake, but instead makes the claim that the public good is both dependent on the group having such privileges and dependent on such privileges being limited to the group.

Unfortunately for the journalist profession as a privieged class, it is unable to establish exclusive professional licensing like the other professions, as such is seen by the current judicial climate as a burden on the exercise of First Amendment rights. As a consequence, its privileges cannot be kept exclusive. Of course, it will still loudly claim the vital need for those privileges, and attempt to maintain professional exclusion by attacking attempts by outsiders to compete with the class (see its reactions to Rush Limbaugh/talk radio, Fox News, NRA News, Jeff Gannon, and bloggers).