With a ruling yesterday where a US appeals court allowed the prosecution to see reporter’s phone records of conversations with sources, we are once again faced with a dilemma. One the one hand, reporters won’t be able to get confidential sources to speak if their identities can’t be hidden to protect them from retribution, etc. so we may never know about things from corruption to murders. On the other, knowing who a source is and even questioning them or putting them on the stand may be the only way to prosecute a case.
Forgetting about what any particular case might be about, what do you think about all this? Should reporters be allowed to shield sources or should prosecuting the case always out weigh any issue of future effects on potential whistleblowers?
Court: Reporter phone records can be seen
A U.S. appeals court panel says prosecution can see the phone records of two New York Times reporters in a case relating to a raid on two Islamic charities.
The newspaper reported the panel in New York in a 2-to-1 decision said the prosecution could look into the reporters` records in an effort to identify their confidential sources. The report also said the decision was a further setback to journalists` seeking to protect sources.
people should just stop commiting crimes, then this won’t be an issue..
ok, but to the point, yeah, I think so, because the individual ought be permitted to remain anonymous, by their choice.
1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Like anything else, no secrecy is absolute. Just like a Doctor has to call the police when someone admits they molested a child or a lawyer is required to report if his client plans to commit a crime, sources being protected should be subject to review.
It’s shouldn’t be something that’s done at will, but with proper oversight, not all sources should be protected. You’ve got free speech, but don’t yell fire in my theater or say I’ve done things I haven’t.
“Proper oversight” — will we ever have checks and balances returned to usual practice — to guarantee that?
Right now, we have a Kongress that approves Constitutional violations in retrospect! Arlen Spector has a bill before the Senate that will simply modify FISA to allow the violations already practiced — and grandfather them in.
So what about a case involving an anonymous accusor? If I do something wrong or illegal, and a witness runs to a newspaper to tell the story anonymously, I still have a 4th amendment right to know who they are and face them in court.
4th Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Ask yourself: is the greater danger from a strong press or a strong government? If you start at the beginning, it’s easy to figure out the answer.
Confidentiality of sources should be respected under most circumstances. But you’re being awfully disengenuous when you say Forgetting about what any particular case might be about… – THESE PEOPLE ACTIVELY TIPPED OFF THE SUBJECTS OF A FEDERAL INVESTIGATION.
I don’t care if we’re talking about alleged terrorists, drug lords or kidnappers – these bone head “leakers” and actively evil “journalists” compromised a criminal probe by warning the targets that they were going to be raided.
The journalists should go to jail for this.
Not if the activity being reported is a feloney.
i think taking it on a case by case basis, as in this case, works. you have to protect sources in most cases but where there seems to be a case of concealing the facts from the law, sources shouldn’t expect protection under the first.
#2: There is no infrigment involved. The press can publish what they want. They just should at times be forced to reveal their sources.
If I say I’ve been told that you like to fondle little boys and print it, the courts should be able to find out who has the proof so you can be charged. Or on the flip side of that you should be able to know who to sue for slander the they lied.
The first admendment protection of the press isn’t a free pass to do whatever they want to get the story. Let’s say there is information they need for a story behind a door guarded by someone. The press doesn’t get to shoot the guard to get the story.
Assume, as many of you seem to want, that reporters have to reveal their sources. What would be the result? Many of those sources would dry up. We wouldn’t know about things from corruption to murders because those who want to come forward are too afraid to do so. Case by case doesn’t work because a source has no way of knowing in advance if he will be protected. Better to not come forward with the evidence.
So, what’s more important? Learning who the source was or learning that a crime took place at all?
How are you determining who’s a journalist? If a reporter witnesses a crime on the way home, can he/she refuse to testify? Should John Dvorak be included? How about blogs? It’s not reporters being protected by the 1st amendment, since anyone can be a reporter. It’s the right to publish. The government isn’t obligated to follow through on reporters’ promises of confidentiality. If the reporters make these promises, let them go to jail if they’re serious about it.
It all depends on the circumstances. If the source is telling the people things that they need to know about their government, then by all means the source should be protected and the reporter not in any way forced to give up the information.
However if the source is reporting about illegal activity, especially if about violent crime… and without the source coming forward and testifying there is not enough evidence to ensure justice is done, then the source should not be left unknown, though should receive physical protection, for in shielding the source the reporter is also shielding those who committed the crime which the source and reporter were exposing.
Then the result of requiring revealing who the source is will result in fewer people coming forward in the first place.
Yes, it’s a catch-22. But again, which is more important:
1) not being able to prosecute one or two cases where the confidential source is the only evidence
2) protecting sources so they feel safe to report crimes which might never be found out and for which additional evidence can then be gathered.
I think reporters should have to reveal their sources, but the bar should be set pretty high – the prosecution should have to show that they have dilligently tried and there is no other way to get the information.
this is not something guaranteed by the 1st Amendment, BTW, but by sound public policy – you want whistle-blowers to be able to go to the press to report nefarious or incompetent government deeds. the first amendment guarantees the right to publish, not the right not to reveal your sources.
I think that whatever the U.S. government says we should do, we should do. They’ve steered us the right way so far, right? I mean, our forefathers couldn’t possible have been thinking about these particular kinds of issues, just like they couldn’t have been thinking about machine guns with the right to bear arms. Let’s just view the Constitution, and other related documents, for what they really are, artifacts from the past. We need a new Constitution and a new, shorter, Bill of Rights. And who better to show us the way than the Republicans and Democrats of today? Hey, that rhymed….
Why do so many people seem to think that “freedom of the press” and “free speech” mean “you aren’t allowed to hear what I said”?
If the journalist is holding evidence related to a criminal investigation, he has to turn it over or he is obstructing justice – potentially even aiding and abetting the commision of a crime.
“So, what’s more important? Learning who the source was or learning that a crime took place at all?”
If (even by a whistleblower) you are accused of committing a crime, you should have a right to face your accuser if the case is brought to trial. This is much more important than fostering some journalist’s availablity of potential sources. What about cases of slander and libel – should those sources be protected too?
And when exactly did freedom of the press get warped into this notion that not having willing sources = government abridging freedom. Everything we do has a consequence of some kind, but apparently we are supposed to believe that being an anonymous source of a journalist is supposed to be the exception. The deeper problem is that most of these sources are really just affraid to stand up to something they feel is wrong if doing so might pose any hardship on their part… and nobody is ever preventing them from speaking or publishing anything if they make the choice to do it. Does a person who is afraid of guns somehow have less of a right to own guns? And for the journalist to say his freedom is being abridged is completely laughable.
The RUB.
they used there OWN phones. Which makes it tracable.
If they used an OUTSIDE phone, NOT theirs and NOT the companies(a payphone, or Neibhors) THEN they could have some protection.
Should reporters be allowed to shield sources or should prosecuting the case always out way any issue of future effects on potential whistleblowers?
Damn spell-checkers… they don’t catch homonyms. 🙂
Anyway,
What are the effects on potential whistleblowers?
I think “true” whistleblowers – those reporting criminal/un-ethical behavior – should be protected; while those merely “leaking” information should be prosecuted.
I think this publicizing this issue is good for whistleblowers:
1. It shows them the lengths they will need to go to, to prevent being identified.
2. Lets them know that just because a reporter promises them something, it doesn’t mean squat. [grin]
3. Lets reporters know to what lenghts they need to go, in order to protect the identity of their sources.
Heck, just look at any “rumour” sites that have multiple ways for people to leave messages or send files…
Reporters and their agencies should setup the same types of systems for legitimate whistleblowers [if they haven’t already]
Yes
This case involves not just the same prosecutor, but Judith Miller too! Last iem, she not only told the grand jury, but the entire public who her sources were. Maybe she’ll do that again here.
#14, Uncle Dave. I don’t think any prosecution could rest on only the evidence possibly supplied by an anonymous informant. Even if the informant showed documents, those documents would still be available in the original. The benefit of the informant is to alert the media and possibly law enforcement that a crime has occurred that we would other wise not know about..
I’ll take door #2, thank you.
#20, Mike V. Don’t ya just hate those darn homonyms. They can really ruin an otherwise perfect post.
To all the civil cases arguments. The Constitution does not apply in most civil cases. Evidence not allowed in a criminal case, will usually be allowed in a civil case. So yes, you may usually force someone to testify as to their sources in civil court.
#20: way vs weigh. The funny thing, I was looking at the sentence when I finished writing it and it just didn’t look right, but my brain farted and I couldn’t see it. Fixed!
Even funnier, I first went and changed the first way to weigh, so then both were wrong. Both fixed. Time for a break!
Uncle Dave,
At least you know we occasionally read your entire post. 🙂