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Confidential Sources

By - November 25, 2006

I remain deeply concerned about the erosion of press freedoms in this country. A Times case regarding confidentiality of sources is coming to a head, more here. Key quote:

“If the government is permitted to proceed to scrutinize the telephone records of The New York Times and its journalists,” Mr. Abrams said, “it will be in a position to identify literally scores of confidential sources, thus imperiling both the ability of the press to gather the news and of the public to learn it.”


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16 thoughts on “Confidential Sources

  1. David Temple says:

    The needs of law enforcement, the majority said, outweighed any protections the reporters might have in the First Amendment or other areas of law.” What? The needs of law enforcement outweigh the First Amendment? The reason we have the first amendment in the first place is because the framers of the constitution didn’t go far enough to protect our civil liberties.

    The press has been on a losing streak of late in the federal courts, with several decisions refusing to recognize protection for confidential sources. The Supreme Court has not weighed in on the question since 1972.” This is alarming at best. You can have my gun but leave my freedom of speech, press and religion alone. On second thought I’ll keep my gun.

  2. steveH says:

    Perhaps it would be more constructive to wonder why the NYT is so eager to publish secrets that damage national security. The ersatz shivers of the fear of Bush’s supposed fascism from “progressives” got old years ago.

    Mr. Battelle, I only found your ‘site and bookmarked it a couple or three weeks ago, but this post earns a deletion from my everyday reads. You and David Temple can drink a martini or three as you congratulate yourselves on your clever disingenuity, but I want no part of your rabid, illogical partisanship.

  3. 1- It would be interesting to uncover whether the CELL PHONE records of the reporters are being sought. In 2001 Cell phones had already penetrated 50% of the American Consumers. And even the Home Phone records may be sought.

    2- Regardless of how the Court eventually rules, hopefully, reporters are now using new tactics to prevent this type of intrusion.

    It is possible that – besides using random public pay phones – it would be interesting to uncover how much protection one could have by using online VOIP services.

    Do they keep records of phone calls, are they destroyed after a certain interval. Also could reporters bring a personal laptop just for those calls, so it is NOT on the publisher’s harddrive.

    If ultimately, the Supreme court desides against the reporters, potential sources may need to be assured that intelligent strategies are being embraced by reporters to protect them.

  4. I can understand it may be worth more to discuss why NYT may be keen to publish things that damage US national security, as suggested by one reader.

    But that is exactly the discussion that should essentially begin by asking if national security is that perfect, hermetically-sealed domain of exclusivity that some may naively assume. Any issue of national security is a cross-border issue (if you haven’t been reading the news about the strange death in London by Polonium of Alexander Litvinenko, British citizen, formerly of KGB, now may be a good time to start)

    Which is why we must, as consumers of news and information, focus on the quality fo journalism and reporting, which needs sources to be protected.

  5. Tom says:

    “The needs of law enforcement, the majority said, outweighed any protections the reporters might have in the First Amendment or other areas of law.”

    I’m quite certain this NY Times report and the above quote specifically, are intentionally vague and lacking in accurate details of what was actually said by the judges regarding their decsision.

    I’m more suspicious of the Times motive here in reporting this story in the form it’s in; perhaps to rally the troops (Battelle et al) and take the matter to the (un)informed court of public opinion.

    I assure you that the ‘majority’ did not come out and tritely lay down their decision by murmuring, “The needs of law enforcement outweighed any protections the reporters might have…”

    There is precedent that will be cited along with granularity on the specifics related to how the precedent affects their decision.

    If you want to report/inform on this issue, John, rather than incite the torch-and-pitchfork crowd with cut-and-paste op-eds, why don’t you look into the details first.

    Tom

  6. Tom says:

    Before this thing spins widly out of control, and I write that becuase John started this with:

    I remain deeply concerned about the erosion of press freedoms in this country.

    I bold “erosion” because it (federal protection, or anyting else for that matter) needs to exist before it can be eroded. Read the following from the majority opinion in the matter below:

    The ruling is not a surprise. The two reporters, Judith Miller of the New York Times and Matthew Cooper of Time magazine, were asking the Circuit Court of Appeals for the District of Columbia to recognize certain rights and protections that the United States Supreme Court has not yet recognized. They were asking a panel of skeptical judges, in other words, to make new law. And intermediate appellate judges rarely like to do that, no matter how sensible a step it would be.

    Writing for the court, D.C. Circuit Court Judge David B. Sentelle ruled flatly that journalists have no constitutional right to be free from testifying before a grand jury. His hands are tied, he said, by a Supreme Court decision a generation ago, Branzberg v. Hayes, in which a divided court rejected the idea of a First Amendment privilege. The justices, Sentelle noted, wrote in Branzberg that they could “not seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it.”

    On this point all of the judges agreed. But when the judges turned to evaluate whether the reporters have a “common law” privilege that could help them in this case they were all over the map. Judge Sentelle ruled that no such privilege exists. Judge David S. Tatel ruled that such a privilege should exist but wouldn’t have made a difference in this case. And Judge Karen L. Henderson said she didn’t even have to decide the issue because the prosecutor’s reason for subpoenaing the two reporters “overcomes any hurdle, however high, a federal common-law reporter’s privilege may erect.” Both Sentelle and Tatel wrote that Henderson should have considered the privilege issue first before rejecting it.

    http://www.cbsnews.com/stories/2005/02/16/opinion/courtwatch/main674492.shtml

  7. Tom says:

    Now, to address John’s deep concerns over the ‘erosion’ there are measures, Federal Bills written and scheduled to be introduced to the Seante and to Congress to address this issue. Here are highlights.

    I emplore you, however, to click through and read the entire bills/proposals. Get you self informed, please don’t just read these highlights there are other matters and nuances that are important that address this pending federal legislation:

    The Senate is considering “The Free Flow of Information Act of 2006″ (S.B. 2831) which would give journalists a qualified privilege for the protection of confidential sources and information.

    AND

    Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.). have introduced the House bill, H.R. 3323.

    H.R. 3323 (Pence bill)

    Confidential sources: Sources are protected by an absolute privilege — meaning the right to keep the source’s name can not be overcome by the subpoenaing party. However, the bills were amended by their authors to allow the privilege to be overcome in case of an imminent threat to the national security.

    Third party records: The bills protect journalists’ third-party records, such as telephone records and e-mail, to the same extent as material held by journalists, and further requires that journalists be notified before such subpoenas are issued and be given an opportunity to contest them before the time the records must be turned over. Who is covered: The bills would cover publishers, broadcasters and wire services and those who work for them. The definition would include freelance journalists who are working for a publisher or broadcaster, but not those without contracts or those who publish solely on the Web.

    S.B. 2831 (Lugar bill)

    Confidential sources: The bill would provide a qualified privilege from disclosing sources.

    Who is covered: The act applies to a “journalist,” which it defines as “a person who, for financial gain or livelihood, is engaged in gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing news or information as a salaried employee of or independent contractor for a newspaper, news journal, news agency, book publisher, press association, wire service, radio or television station, network, magazine, Internet news service, or other professional medium or agency which has as one of its regular functions the processing and researching of news or information intended for dissemination to the public.”

    http://www.rcfp.org/shields_and_subpoenas.html#shield

  8. Tom says:

    We certainly do need the 1st Amendment: In order to protect us from the dirty, filthy, lying reporters that have infiltrated the media in the mainstream press. Reporters privilege does not exist and thank goodness for that. Now if we could get rid of the bogus and likewise unconstitutional “hate speech” laws that are calculated to destroy the free speech rights of everyone, not just reporters. The racist group “La Raza” is just one example of how the real racists pawn off their hate to the politically acceptable and politically naive American public. Hate Speech: The frightening double standard – and far more frightening than the so falacious “reporter privilege”.

  9. Tom says:

    The frightening double standard – and far more frightening than the so falacious “reporter privilege”.

    I’m not sayng we don’t need a federal press protection privilege.

    Far from it.

    I’m merely addressing the misplaced deep concern over erosion of this matter, when in fact, there never has been such a thing to begin with.

    If anything press privilege has been on the rise since the ’72 Branzberg. At the time of that decision there were only 17 states that had State Constitution meaures in existence. Since then the number has risen to 31 states with Constitional protections for confidential sources for the press.

    Amidst that rise we have pending Bills in the House and Senate that will come to the floor to create federal laws to protect the press in federal investigations.

    This is hardly an erosion. Just the opposite.

    Tom

  10. Keith Cash says:

    This seems to be another erosion of our personal freedoms. The banks re-quest a fingerprint; all cell phones can be tracked by satellite. The NYT knows that all things can be checked via cell phones, maybe next time they will be more careful

  11. Jim Hobson says:

    I have no problem with this if it is for the purposes of criminal investigations or national security purposes. This is not a violation of the First Amendment. There is no proposed action to eliminate anyone’s ability to speak freely however it does reintroduce the sense of responsibility that one must have for their words and actions. (It is a shame that too often in modern times we must resort to trying to legislate decency and civility.)

    The left wing, liberal media has a reckless “anything goes” mentality and continually violates both ethics and legalities when trying to CREATE news. The people that participate are what Lenin would have called “useful idiots”. Look at Dan Rather’s use of forged documents to attack the President as an example!

    If you are a law abiding person why would you be concerned about such things? If your cause is just the American population will support you. The majority of the media has lost its sense of objectivity and seeks out “sources” which aid them in constructing “investigative reporting”. The fact is that these “sources” are typically ideologically charged moles that serve as ongoing providers of out of context information that is used for ulterior motives – namely to harm the U.S. government, destroy traditional American values and intimidate public officials into supporting the liberals socialist agenda. I fully support the identification of those persons who threaten the values of our country. If your cause is just you should stand and speak – Freely of course.

  12. Mike says:

    This blog used to be worth the read. Now it seems the focus is more for your anti-government rants. Pull your head out of the sand my friend, freedom is costly.

  13. TallTroll says:

    Reporters need to be able to keep sources identities secret. Otherwise, people stop talking to reporters, and reporters don’t know the truth of whats going on. Note that whether they choose to report the truth or not is a separate matter.

    Dan Rather used fake documents to attack Dubya – and it cost him his job. That’s the check on journos. If there’s no corresponding check on law enforcement just grabbing reporters sources, there’s no free press, and that’s a bad thing.

    >> destroy traditional American values

    Since those “traditional values” include racism and slavery, supporting and supplying foreign dictators in the slaughter of their enemies and their own citizens, perhaps they deserve to be under attack? Since they also include a commitment to freedom, democracy and religious tolerance, perhaps the better parts will survive and prosper

  14. Trogdor says:

    Free speech died the day the McCain-Feingold Act was passed. It was all about limiting political speech – the exact kind of free speech the 1st amendment sought to protect.

  15. JoeDuck says:

    John, relax dude! Free speech is alive and well in America and always will be. It’s a cornerstone of our system, and despite a lot of grumbling freedom of speech has never been in anything approaching “jeopardy” here in America. However, other countries are an entirely different matter, and our efforts should be to bring to those in many repressed countries even a fraction of the rights we enjoy here.

  16. JoeDuck says:

    The strong feelings on both sides of this debate leave me unmoved. Free speech is not in fundamental jeopardy, but it’s also clear that the new security sensibilities sometimes favor unreasonable erosion of rights. I see spirited debate in and out of the courts about these issues, so my conclusion is the same as MAD Magazine’s Alfred Neuman:

    What, me worry?