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 Hot Topic
Playing
with a Loaded Gun
Journalists Take Risks When Picking a Fight
by Herb Strentz
A few journalists
went looking for a fight at the wrong time and in the wrong place. They talked themselves
into believing that the current U.S. Supreme Court is so sensitive to the First Amendment
and to newsroom concerns that the justices would undercut other cherished principles
just to make reporters feel good.
Hah!
Unfortunately, the issue cannot be laughed off because such efforts to pick a fight
may knock all of journalism for a loop.
All this came about because a would-be book author in Texas, Vanessa Leggett, refused
to tell federal authorities information she collected about a murder. So she was
locked up for 168 days - a record in such cases - and freed only because the term
of the grand jury that was awaiting her testimony had expired.
Leggett's journalistic credentials are out of the mainstream, largely conferred on
her by the Society of Professional Journalists, which paid half of her legal fees
of $25,000. As a sociologist/criminologist she has written a couple of FBI manuals
and some academic articles.
But when federal prosecutors went after her - in heavy-handed fashion - for
information about a murder, the SPJ, the Reporters Committee for Freedom of the Press
and other leaders of the journalism establishment came to her aid.
All that is understandable and laudable.
What was not so praiseworthy, however, is the idea of continuing her legal battle
and asking the U.S. Supreme Court to adopt a 1987 standard adopted by the Second
U.S. Court of Appeals that would expand the so-called shield law protection enjoyed
by journalists. Fortunately, the Supreme Court made the issue moot -- at least for
a time -- by deciding in mid-April that it would not hear Leggett's appeal.
Here is the background:
- In 1972, the U.S.
Supreme Court laid the groundwork to give journalists more immunity from testifying
in court than other citizens.
- While Congress has
not passed a federal shield law, 31 states have such laws, and most of the other
states have constitutional protection recognized by state supreme courts. Iowa has
judicial protection of journalists, thanks to a 1977 decision that involved then-Des
Moines Register Reporter Diane Graham, JO'74, who is now managing editor of the
paper.
- Such legal protection
and other arrangements negotiated with law enforcement officials mean that news reporters
do not have to share confidential sources or unpublished material unless the government
satisfies certain conditions, including that the requested material go to the heart
of a case and is not available anywhere else.
- In its 1987 decision,
the Second Circuit said shield law protection could be extended to a person so long
as, from the time information-gathering began, he/she intended to disseminate it
to the public. Leggett likely would meet that test.
Jane Kirtley, former
executive director of the Reporters Committee for Freedom of the Press and now at
the University of Minnesota, advised journalists: "be careful what you wish
for. The current Supreme Court gives tremendous deference to the grand jury process
and is unlikely to embrace the concept of a broad testimonial privilege. If the high
court considers the issue anew, there's a good chance it will reduce the journalist's
privilege to nothing."
Meanwhile, Leggett and her supporters still await the convening of a new grand jury
and the question of whether she will be subpoenaed again.
Instead of preparing for a court fight, journalism organizations should negotiate
on Leggett's behalf and see if the government will alter the sweeping nature of its
information request to something that Leggett could live with - particularly since
some of the information sought from her, she says, is readily available if the government
just talks with some of its agents who have interviewed her.
Citizens, after all, do have responsibilities to testify in court. And the news media
had better wonder what interests are served if anyone with a computer and modem qualifies
as a journalist. If so, say goodbye to a wide range of benefits that facilitate news
coverage of thousands of events and provide a measure of needed independence to those
responsible for telling the rest of the world what's going on, especially about government.
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Herb
Strentz is a professor in the School of Journalism and Mass Communication.
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