USS Clueless              Voyages of a restless mind

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Stardate 20010818.0609 (On Screen): The status of the free press is an interesting problem constitutionally. It's not known as the "Fourth Estate" for nothing; it's generally recognized as being a counterbalance to the three branches of government to help keep them under control, by publicizing cases where they abuse their power. The press is the eyes and ears of the voters and needs the ability to find and publicize information which might be important to the voters. But to turn up that kind of information, sometimes they need to be able to talk to sources in confidence. Some sources won't talk to a reporter if they know that their identity and what they said might later be revealed to law enforcement authorities, but without their information, the press might not be able to perform this vital constitutional role. So there has come to be recognized what is known as "journalistic privilege", where a journalist can refuse to reveal such information even under oath. I think this is important, but it's also quite dangerous.

What's a journalist? I think we can all agree on Dan Rather, for instance. (cough) How about Joe No-name who works for the Apalachicola Times? Yeah, him too. How about me? No, I don't think so. I have indeed been published and I've even gotten paid for it. Over the course of my lifetime I've probably made a grand total of $3000 that way. I also maintain this web log, which is essentially a form of "publishing" according to First Amendment principles and also according to copyright law, even though it doesn't happen to involve paper. Could I refuse to testify if I had information which was vital in a court case? Hell no. The problem here is that the word journalist is like the word artist in the sense that nearly anyone who wants to can make at least a flimsy case for being one, and if anyone who claimed to be a journalist could be exempted from testifying about knowledge of crimes, then the criminal court system would fall apart. Either it would become impossible to use hostile testimony to convict (or acquit!) anyone, or else defendant's Sixth Amendment rights would be violated.

So having recognized that a journalistic privilege probably needs to exist, the courts equally have to prevent it from spreading too far. It must be a narrow privilege. You're not just a journalist because you say that you are; there has to be more to it than that. And even if you are one, this cannot totally immunize you from giving testimony. When there is specific information needed in a particular case to potentially prevent a miscarriage of justice, then the harm involved in violating journalistic privilege would have to be very great indeed in order to counterbalance the potential harm of a miscarriage of justice. Case in point: a woman was murdered, and her husband and his brother were arrested. The prosecution theory was that the husband had conspired to have his brother kill his wife in order to avoid losing a scad of money to her in an impending divorce case.

While being held, the husband committed suicide. But before doing so, he talked to a "journalist" named Vanessa Leggett and told her that he'd committed the murder himself and had framed his brother. The Grand Jury considering an indictment against the brother clearly needs to know the details of this. Did he actually frame his brother? Or did he decide that since he was about to kill himself anyway that maybe he could help his brother out and lie to take the blame for the murder his brother actually did commit? Is the brother, Roger, a murderer or an innocent man who was framed? That is an important question. Roger's future depends on determining if the husband, Robert, lied and to determine that they need to look at every scrap of information available about his "confession". Vanessa Leggett refused to release all the information she has about it, and has now been jailed for a month for contempt of court. An appeals court panel has upheld that decision, and I completely agree with it. Her credentials as a journalist are distinctly shaky in any case, but even if this were Carl Bernstein the interests of justice would override the interests of journalistic confidence. Journalistic confidence is not a total privilege such as the one enjoyed by doctors and priests; it only applies in narrow circumstances and this clearly isn't one of them. (Its purpose is to permit discovery of misbehavior by government, and there is apparently none involved in this case.) The courts had to rule the way they did on this; any decision in her favor would violate the Sixth Amendment, which declares that a defendant must have compulsory means to obtain witnesses in his defense. Their only grounds to refuse to testify would be Fifth Amendment guarantees against self-incrimination. They can't be permitted to evade that simply by claiming to be "journalists" because then everyone would claim to be one.

If Leggett doesn't relent, she could face up to 18 months in jail for this under direct court order. After that, I believe she could be indicted and tried, and possibly imprisoned for even longer. "Contempt of court" cannot be tolerated; testimony must be given. Our freedom and security depends upon having an effective and just court system. (discussion in progress)