Thursday, June 17, 2004
journalists' privilege, volokh, and the new york times.
A volokh post takes offense at some reporters, at reuters and the new york times, resisting being compelled to testify at a trial.
volokh is wrong, and the reporters, and their attorney, floyd abrams, are right, and i think it's worth discussing. at the moment i'm too tired to work, too hot and anxious to sleep, so i'm blogging. one of the interesting things about bloggers is that they are journalists who don't identify as journalists. volokh is one of the best, one of three blogs i read daily. (hasen, volokh, crescat.)
in volokh's world (i'm exaggerating his position for effect) journalists can be press-ganged into the service of government intelligence at any moment.
the ethical jounalist would begin an interview like this: hi, i'm mike from the jonesboro spin. i'd like to ask you about the smith case. you have the right to remain silent. anything you say can be used against you in a court of law. do you understand these rights?
in such a world, fewer sources will talk to the press.
volokh was once a software designer, then lawyer, then law journalist then blogger.
i'm not sure software designers have professional ethics in the same way lawyers and mainstream journalists do, although there's an ethical culture
reflected in e.g. reno or the open source movement.
in j-school, we were indoctrinated into a world view that a reporter protects her sources, that doing so is the essence of free press protected by state and federal constitutions and the common law, that these rights are imperfectly recognized by the courts, and every journalist should have a suitcase packed and be ready to go to jail on this point if needed.
i liked that part, and have lived by it. we were also indoctrinated in a false myth of objectivity, which the blogoverse has overthrown. as bloggers, we write about what we choose, putting our reputation capital ("wuffie") on the line every time, but with no editor-in-chief or publisher to answer to.
as a lawyer, i've been in the position of being found in contempt of court rather than reveal a privileged attorney-client communication. i cited my state constitutional right to free speech and my right to be free from self-incrimination and that the statute applied only to parties (i was a non-party witness) but none of that worked. these journalists were in a similar boat.
there are also aspects of involuntary servitude and liberty interests in tension with one's duty to the court.
volokh sees the duty to assist the court (let's, perjoritively, call this the snitch duty) as higher than the journalist's duty to discover truth by protecting sources (say, for example, deep throat, or whoever told drudge about the blue dress.) here, he points out, the remarks were intended for publication.
however, the source also knew about, and may have relied on, the hearsay rule, which would prevent her remarks from being admissable. she also would have relied on the integrity of the new york times, which hires people like floyd abrams to protect their sources in court. she didn't go to the weekly midnight star. disclaimer - i'm a former contractor for the times - the times bought me my first tangeray (sp) back in the 70s. and i've known volokh for years via various listservs. this time, the times is right, volokh is wrong. that is rare enough, in a man bites dog sort of way, that i decided to write about it.
not as sexy a piece as his discussion of what makes men sexy, but journalists ethics is a hot button for me. i became a lawyer as part of a search for a way to get paid to be an ethicist. so far, it isn't working, but the continuing quest is fun.
if there's something wrong about the duties of the press interfering with the operation of the court system, perhaps the remedy is to revise the 57 exceptions to the hearsay rule, rather than try to compel journalists to act unethically. in thinking about the hearsay rule, why we have it, what exceptions we allow, we might even discover that there is some good reason to allow the journalists to act as they have, and exclude the testimony. i am not an expert on rules of evidence; i don't take a case to hearing without stipulations of fact, so i'll take no position on how the hearsay controversy should be resolved, except that it can be done without infringing the reporters' freedom of the press. -30-
A volokh post takes offense at some reporters, at reuters and the new york times, resisting being compelled to testify at a trial.
volokh is wrong, and the reporters, and their attorney, floyd abrams, are right, and i think it's worth discussing. at the moment i'm too tired to work, too hot and anxious to sleep, so i'm blogging. one of the interesting things about bloggers is that they are journalists who don't identify as journalists. volokh is one of the best, one of three blogs i read daily. (hasen, volokh, crescat.)
in volokh's world (i'm exaggerating his position for effect) journalists can be press-ganged into the service of government intelligence at any moment.
the ethical jounalist would begin an interview like this: hi, i'm mike from the jonesboro spin. i'd like to ask you about the smith case. you have the right to remain silent. anything you say can be used against you in a court of law. do you understand these rights?
in such a world, fewer sources will talk to the press.
volokh was once a software designer, then lawyer, then law journalist then blogger.
i'm not sure software designers have professional ethics in the same way lawyers and mainstream journalists do, although there's an ethical culture
reflected in e.g. reno or the open source movement.
in j-school, we were indoctrinated into a world view that a reporter protects her sources, that doing so is the essence of free press protected by state and federal constitutions and the common law, that these rights are imperfectly recognized by the courts, and every journalist should have a suitcase packed and be ready to go to jail on this point if needed.
i liked that part, and have lived by it. we were also indoctrinated in a false myth of objectivity, which the blogoverse has overthrown. as bloggers, we write about what we choose, putting our reputation capital ("wuffie") on the line every time, but with no editor-in-chief or publisher to answer to.
as a lawyer, i've been in the position of being found in contempt of court rather than reveal a privileged attorney-client communication. i cited my state constitutional right to free speech and my right to be free from self-incrimination and that the statute applied only to parties (i was a non-party witness) but none of that worked. these journalists were in a similar boat.
there are also aspects of involuntary servitude and liberty interests in tension with one's duty to the court.
volokh sees the duty to assist the court (let's, perjoritively, call this the snitch duty) as higher than the journalist's duty to discover truth by protecting sources (say, for example, deep throat, or whoever told drudge about the blue dress.) here, he points out, the remarks were intended for publication.
however, the source also knew about, and may have relied on, the hearsay rule, which would prevent her remarks from being admissable. she also would have relied on the integrity of the new york times, which hires people like floyd abrams to protect their sources in court. she didn't go to the weekly midnight star. disclaimer - i'm a former contractor for the times - the times bought me my first tangeray (sp) back in the 70s. and i've known volokh for years via various listservs. this time, the times is right, volokh is wrong. that is rare enough, in a man bites dog sort of way, that i decided to write about it.
not as sexy a piece as his discussion of what makes men sexy, but journalists ethics is a hot button for me. i became a lawyer as part of a search for a way to get paid to be an ethicist. so far, it isn't working, but the continuing quest is fun.
if there's something wrong about the duties of the press interfering with the operation of the court system, perhaps the remedy is to revise the 57 exceptions to the hearsay rule, rather than try to compel journalists to act unethically. in thinking about the hearsay rule, why we have it, what exceptions we allow, we might even discover that there is some good reason to allow the journalists to act as they have, and exclude the testimony. i am not an expert on rules of evidence; i don't take a case to hearing without stipulations of fact, so i'll take no position on how the hearsay controversy should be resolved, except that it can be done without infringing the reporters' freedom of the press. -30-
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