January 03, 2007

In Which A Poynter Scholar Responds To Jawa Report

Blogging gets results!

I wrote a post critical of an AP article the other day and cross-posted it here at Jawa Report. The gestalt of the article was how reporters were getting apprehensive about testifying in the criminal trial of Scooter Libby.

To my pleasant surprise, one of the sources that the AP interviewed as a 'pro-journalist' source responded in the comment section. A scholar at the Poynter Institute, Dr. Roy Peter Clark was apparently "honored" by my characterization of his quote in the story as "hysterics" and of him as a "journalism advocate."

I'm honored that he's honored, but I maintain that the knee-jerk reaction by reporters to this case is somewhat amusing considering that the facts of the case really give them little ground to do so. I nonetheless applaud the man for venturing into what most journalists and scholars in the field would consider to be hostile waters.

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Here's what he wrote:

It's a honor to be called hysterical and a journalism advocate on your blog. Cheers. But let's take the problem out of Washington, and out of cantankerous red state/blue state politics. In San Francisco, two able reporters are facing jail sentences for not outing their sources on the Barry Bonds/Balco scandal. These two reporters have received public praise from none other than the President of the United States. If the threat of prosecution could happen to them, it could happen to any journalist -- or any blogger.
I responded in kind, with all of the fury that can be expected from a solid J-school undergrad and graduate education:
Dr. Clark: I'm glad you're honored. I'm no dummy when it comes to media law, unfortunately. Here's the problem.

(Clark) If the threat of prosecution could happen to them, it could happen to any journalist -- or any blogger.

I sincerely hope, Dr. Clark, that you aren't suggesting that journalists don't have an obligation to testify in criminal cases in which their testimony is potentially exonerating to a defendant charged with a criminal offense, or if the journalist is a witness to a crime (or likewise if their testimony is central to a criminal prosecution.) After all, that's the standard all American citizens are held to. No federal shield laws and no special privileges exist for the journalism class. Libby's case is a federal case, and therefore, there are no state shield laws that the reporters in question can hide behind in this case.

I understand your point, but this isn't a case on which to base your fear of free speech being chilled (which appears to be your concern.) Libby's conversations with reporters weren't confidential, and therfore, won't get that kind of legal treatment. Again, there are no federal shield laws which the reporters (Russert, Mitchell, Cooper, Miller) can hide behind. They are compelled to testify in order to fulfill Libby's constitutional right to a full and proper defense - this is a serious, criminal charge, after all. It doesn't matter what your political persuasion happens to be - that's the federal law, like it or lump it. You aren't suggesting, Dr. Clark, that you are above the Constitution or federal laws pertaining to a defendant's criminal defense rights and ability to call witnesses, are you?

I don't expect Dr. Clark to respond immediately (or even at all), since the rest of the discussion is moot at this point. There is no 'confidentiality' that reporters granted Scooter Libby in their conversations with him. and therefore, they can't expect themselves to suddenly and retroactively be immune from testifying about those conversations now that they will be compelled to do so. That's precisely why Judith Miller spent some 80 or so days in jail for refusing to reveal the contents of her conversations.

This is all regardless of whether they were talking about a CIA agent (who it turned out wasn't under cover) or not. The issue now is that Scooter Libby is charged with a criminal offense, and it is incumbent upon his defense team to give him the fullest and most vigorous defense possible under the US Constitution. Libby does not cede his Constitutional rights to a complete and fair defense, and the reporters do not magically supercede his Constitutional rights with their own misguided notions of being 'above' testifying in the defense of government officials they may not particularly care for.

There simply are no national shield laws (there are some state shield laws) when it comes to reporters testifying in criminal cases in federal court. The Supreme Court has upheld this standard for decades for a good reason - federal charges are serious, the penalties stiff, and therefore the defense against such charges must be vigorous and thorough at times. This is one of those times. The reporters, their misunderstanding of shiled laws and their "fears" are outweighed by the Constitutional right of Scooter Libby to have a fair trial.

Your serve, Dr. Clark. I stand by my position.

Cross-posted at Mein BlogoVault.

By Good Lt. at 10:44 AM | |