Americans anxiously awaited a decision Thursday involving a young African American man. Some thought an entire community would erupt in riots based on the outcome. You might think I’m referring to star basketball player LeBron James choosing to “take his talents” to South Beach. I’m not.
While TV media hyped “The Decision” for hours and millions seemed more concerned about a rich guy’s job situation than they did about their own, another decision came down in a Los Angeles courtroom with far more serious implications.
If the jury believed Mehserle’s testimony, then a key follow-up was ignored: Was Mehserle justified in using his Taser, let alone any weapon? The Taser has been implicated in playing a role in suspects’ deaths. And there have been cases in which a gun wasn’t even involved—see Anthony Baez. Therefore the issue is not the gun; it’s police brutality. The choice to use excessive force murdered Oscar Grant. Johannes Mehserle made that choice.
Afterwards, the usual story played out: the authorities’ “official” account characterized the suspects as thugs. But in the YouTube era, almost everyone in that BART station had a cell phone camera. Multiple videos immediately surfaced. For me, the loud pop is the most chilling moment—out of proportion to what we’re seeing. After all, officers were responding to reports of a fistfight.
If Mehserle decided to use his Taser only because he saw Grant as a threat, simply because he was young and black, then on a different night in a different place, the victim could have been LeBron James, or any black male, or anyone, period. Until we confront police brutality—by punishing officers who murder unarmed citizens—we will continue to see the same pattern of abuse, no accountability, and tragic loss of life.
This weekend, the documentary film, “Disturbing the Universe,” about self-described radical lawyer William Kunstler, has its New York City premiere at Cinema Village. The film, directed and produced by two of his daughters, Emily and Sarah, for their production company, Off Center Media (which produces documentaries exposing injustice in the criminal justice system), takes a personal look at a man who was known for representing often controversial defendants from the Civil Rights era until his death in 1995. The film was an official selection at the Sundance Film Festival earlier this year.
The Central Park Jogger case was infamous in 1989 and shock and outrage followed the arrests of the teens. Headlines referred to them as a “wolfpack.” As the teens were convicted in the court of public opinion, Kunstler decided to take the case, as he had taken many others in the past. Unfortunately, he passed away before he could see Salaam be exonerated.
Yesterday, news came from the Justice Department that a number of the detainees held at Guantanamo Bay, including Khalid Sheikh Mohammed, will be brought to New York to face trial in a civilian court. This news has caused the same, if not more, hyperbolic reaction that the Central Park Jogger case did 20 years ago. So I wonder if Bill Kunstler, if he were still alive today, would have represented Mohammed, the self-proclaimed terrorist and mastermind of the 9/11 attacks. I think, considering he represented the so-called Blind Sheikh for his role in the 1993 bombings of the World Trade Center, that Kunstler would. But maybe not. Speaking in 1970 on why he didn’t represent right-wing groups, he said, “I only defend those whose goals I share. I’m not a lawyer for hire. I only defend those I love.” It is true though, that in later years, he would take on cases when he felt a defendant was convicted before the case reached the courtroom. Clearly then, he was a principled advocate who believed in the rule of law, the legal justice system, and the rights of all, no matter how controversial, despised or hated.
A Dutch communications scholar is conducting research on the way the city’s police department and its critics get their messages out in the public sphere. Based on the work she’s done so far, she believes that the two groups both feel victimized by the other, and what they say in public sometimes exacerbates the problem.
Michelle Knight, a doctoral candidate at the University of Groeningen in the Netherlands, is in New York working on her dissertation. She has already written the first part—a historical look at the police department and its critics from the 1850s to the present. Now she is specifically examining the Sean Bell shooting and its aftermath as a case study.
“People are always surprised that I am studying this,” Knight said. “I have a passion for the New York City Police Department. I have a passion for New York history.”
“And I have a passion for polarized communication,” she said.
Knight was a master’s student of American Studies on an exchange program at the University of North Carolina in 1999 when Amadou Diallo, an unarmed African immigrant, died in a hail of 41 police bullets while he stood in his home’s vestibule.
Knight didn’t understand how it was possible for something like that to happen, so she closely followed the case and the ensuing debate. She went to New York and arranged meetings with police union and community leaders, and became fascinated they held such a different reality on the events that had taken place. She eventually wrote her master’s thesis on the history of the police department, which became the first chapter of her dissertation.
In 2006, Knight was back in Holland when she heard about the police shooting of Sean Bell, who was also unarmed, and killed the night before his wedding. This time, police had fired 50 bullets. Again, she followed the aftermath online, through the indictments of the officers involved, their trial and subsequent acquittal. As methodology, she chose to examine every utterance of a stakeholder in the New York Times’ reports.
“Everybody watches the NYPD and the various claims-makers interact in the press, on the stage of the metropolis,” said Greg Donaldson, a professor of communications at the John Jay College of Criminal Justice at the City University of New York. “But nobody has really studied it in a scholarly way.”
A law that protects journalists from having to reveal the identities of their confidential sources was approved by the House Judiciary Committee last Wednesday. Next step: the bill will be sent to the House, where it is expected to pass. What is unclear is whether the bill has enough support to pass in the Senate. A similar bill died there last year after former President George W. Bush threatened a veto, citing national security concerns. President Obama was a sponsor of the shield bill when he was an Illinois senator.
More than 800 people were arrested at last year’s Republican National Convention in St. Paul, Minnesota. Now, many are filing lawsuits alleging misconduct on the part of St. Paul police and the Ramsey County sheriff’s department. It is the first major action taken since last September’s convention.
Also, during the the week of the RNC, nearly 50 journalists were arrested while attempting to cover the protests in the streets outside the Xcel Center. Be sure to read this article I wrote about the 2008 RNC that addresses the legal restrictions of newsgathering at demonstrations.
On Tuesday, Feb. 3, 2009, the New York County Lawyers’ Association sponsored a public forum called “Protecting Journalists and Their Confidential Sources: A Matter of Privilege.” The event brought together lawyers and journalists, both on the panel and in the audience, to discuss the legal risks reporters face when dealing with sources that wish to remain anonymous. To get a basic understanding of what reporter’s privilege is, you can watch this video from Media Law Resource Center attorney Maherin Gangat.
L-R: Ann B. Lesk (NYCLA president), John Zucker, Judith Miller, Eve Burton, George Freeman, Joshua Kors, Carl Unegbu, Olivera Medenica (NYCHA Entertainment, Media, IP, Sport Law Section program chair)
Judith Miller, The Manhattan Institute (formerly of The New York Times) Eve Burton, vice president and general counsel, The Hearst Corporation George Freeman, assistant general counsel, The New York Times Joshua Kors, investigative reporter, The Nation magazine John Zucker, vice president, Law and Regulation, ABC, Inc.
Carl Unegbu, freelance journalist and NYCLA committee member
Sponsor: NYCLA’s Entertainment, Media, Intellectual Property and Sports Law Section
Co-Sponsors: NYCLA’s Civil Rights and Liberties Committee and Criminal Justice Section
8:15 p.m.: WRAP – The forum is over and people are milling around talking to each other. General consensus: this area of media law is still very unclear and there are disagreements about what is necessary in terms of privilege. But the room is filled with the buzz of conversation, so at the very least, the discussion is continuing; and with the introduction of a federal shield law in Congress next week, I’m sure that discussion will continue.
8:11 p.m.: A questioner in the back row with an extremely cutting (and loud) voice (I admire his projection abilities) asks about how the discussion of reporter’s privilege could relate to the idea of executive privilege. Burton, in her response, says that from a legal standpoint, both privileges relate to the broad power grab by the powers vested in Article II of the Constitution (the Executive Branch) in the last eight years.
8:00 p.m.: Miller says that if a source lies to you, then you don’t publish it. Some murmurs in the room. She then qualifies it by saying when they “knowingly lie” to you and whether or not you’re able to know that they did.
7:56 p.m.: The question of qualified promises to sources comes up – as in “I’ll give you confidentiality until I get in trouble with the law.” Miller and Kors agree that sources will dry up unless the promise is a full promise of confidentiality. The questioner wonders out loud, then, what’s the point of the federal shield law?
7:52 p.m.: The radiator to stage right, keeps moaning slightly, on and off. I wonder if it might get worse and become a real nuisance.
7:48 p.m.: In response to the first question asked, George Freeman speaks about differences in the versions of the law in Congress. The last Senate version of the shield law only protects reporters and sources when it comes to confidential sources. However, the last House version protected any communications between reporter and source, confidential or not.
7:45 p.m.: The moderator opens the floor for questions from the audience. First one goes to a criminal defense lawyer sitting in the front row.
7:41 p.m.: First mention of the new Obama Administration by:…. *drumroll* John Zucker. He hopes that the new administration won’t go after journalists the way the Bush Administration did.
7:40 p.m.: As journalists, we need to consider whether or not we are being mouthpieces for an anonymous source who wants to disseminate false info, Kors says. But, he continues, it’s our job to make sure the information is true.
7:36 p.m.: Federal Shield Law actually adds something to state laws with regard to a leak investigation.
7:30 p.m.: Eve Burton says that Sen. Dianne Feinstein is worried that terrorists will try to claim this privilege. Miller interrupts her and says twice, “she’s afraid of Al-Jazeera.” Burton thinks that the question of who qualifies as a journalist is really not as a big part of this issue as people make it out to be. She thinks there are other more interesting parts of the issue. But she doesn’t say what. I’d like to know what she’s thinking.
7:25 p.m.: Who qualifies as a journalist? It was like hot potato with this question – first directed to Kors, then passed to Miller, now to Freeman.
7:21 p.m.: Zucker ties his point into a little historical context. Nixon really wanted to go after the press in the late 1960s. Despite the Supreme Court Branzburg decision against the press, state courts in the ‘70s were generally supportive, but now the pendulum has swung against journalists.
7:18 p.m.: Zucker gets his first shot – he’s speaking about national security and a federal shield law. He makes a very good point that most information re: national security is classified. And since it would be illegal for anyone to give reporters this information, this is one area where we definitely need a federal shield law.
7:15 p.m.: Judith Miller would make the same decision (to not reveal that Scooter Libby was her anonymous source, and go to jail as a consequence) that she made a few years ago if she had to do it again.
7:12 p.m.: We’re getting toward an hour into the forum and I’m starting to wonder if John Zucker is getting a little annoyed that he hasn’t been given an opportunity to speak yet. He’s all the way that the end of the panel. Literally and figuratively.
7:08 p.m.: First question from the moderator: Who is the privilege given to? Judith Miller thinks that “it is the source’s privilege.” Miller says that she never wrote anything with the information she had gotten from her confidential source (now known it was Scooter Libby). She wishes she had. After some of the discredited WMD reporting, I’m sure some in the audience were thinking they were glad she didn’t.
7:06 p.m.: Reporters are saying “it’s just not worth it” to publish stories when you have no protection. It stops the free flow of information.
7:04 p.m.: The purpose of the federal shield law is meant to “mesh” with the state shield laws. And it’s not an absolute privilege. It’s a balancing act. It’s the judge’s job to balance. What’s the interest of the government? Versus what’s the interest of the people?” says Eve Burton.
6:55 p.m.: The press are the government’s watchdogs, “not their lapdogs,” says George Freeman. He’s talking now about the Branzburg decision as precedent and talks about the three-part test.
6:52 p.m.: A Federal Shield Law will be introduced in Congress next week, says George Freeman. This privilege doesn’t only protect one person; it protects all of us. It enables all of us to get more information. If sources are afraid to talk to reporters, we’re just going to get news and information from the powerful in society. One could argue that this privilege is more important than a doctor-patient privilege.
VIDEO: Watch George Freeman after the forum talk about a federal shield law
6:46 p.m.: (How do you corroborate a confidential source? ) How do decide when to grant anonymity to a source? “First you have to question his motives,” Kors says.
6:37 p.m.: Tonight’s forum is about “We the People,” says moderator Carl Unegbu. Tonight we are discussing the question “why should journalists have a privilege not available to any other citizen?”
6:32 p.m.: The introductions continue. Olivera Medenica, Esq. asks how many in the audience are lawyers – about half the people in the room raise their hands. She also asks how many journalists there are – a number of people raise their hands, but they are outnumbered by the lawyers.
6:28 p.m.: The public forum begins with introductions of the panelists.
George Freeman (R) talks to a criminal defense attorney before the forum.
6:12 p.m.: The public forum is running a little late. The beautiful room (with three crystal chandeliers!) is filling up slowly and Judith Miller just arrived. The weather here in downtown Manhattan is atrocious this evening: Huge wet snowflakes that are not sticking.
I read Ethan Bronner’s article today in the New York Times, “Bullets in my Inbox,” and I thought he did a very good job summing up how hard it is to navigate reporting the story of the Israel/Palestine conflict. So much is based on narrative, definition of terms, context/history, and perceived hidden biases/agendas. The idea of narratives and definitions made me think of this great book I read, “The Culture of Conformism: Understanding Social Consent,” by Patrick Hogan (though I wish he would publish an updated edition; the first is from early 2001, before Sept. 11, and is really before the Bush Presidency and the Iraq War, though Hogan does talk a lot about Desert Storm).
Anyway, re: Ethan Bronner’s Times’ article, I really understand in terms of looming deadlines and the struggle to be fair in one’s reporting, how much of the time, reporters don’t think one way other the other about an agenda or bias. However, just because they’re not explicitly thinking about it, doesn’t mean that it doesn’t seep through. We all have biases, we all have agendas and everything is politics. I believe that there is no such thing as objective reporting, but that there is a thing called fair reporting.
Bronner points out that Israel banned all foreign journalists from Gaza during the three week assault on the narrow strip of land (which has been under a near total blockade since 2005, and had been fully occupied by the Israeli military before that). What happened was that you had all these foreign journalists reporting from towns in southern Israel that were being hit by Hamas’ rockets. As such, in the West, we didn’t see the death, damage and destruction in Gaza; instead we saw the aftermath of rocket attacks on civilians in southern Israel. The proportionality of what we saw did not match reality. It is crucially important to point out that over 1300 Palestinians died in Gaza (many if not most of them civilians), while 13 Israelis died. That is a 100:1 ratio of death. There is no getting around that fact when telling this story.
Journalists Arrested While Doing Their Job: The Legal Restrictions of Newsgathering at Demonstrations
By Kieran K. Meadows
Inside the Xcel Center the first week of September, the Republican National Convention was finally getting underway after a slow start because of Hurricane Gustav. Outside the convention center on the streets of St. Paul, Minnesota, a completely different story was unfolding. Thousands of protesters had converged in St. Paul to take part in demonstrations or engage in acts of in civil disobedience. More than 800 people were arrested, including many reporters who were covering the convention story.
“If you were a journalist covering the protesters, then you were subject to any number of these tactics,” said Sharif Abdel Kouddous, referring to police crowd control tactics such as concussion grenades, tear gas, mace, and police on horseback. Kouddous, a producer of the nationally syndicated TV/radio news program Democracy Now!, was arrested twice while covering the protests.
“It made it difficult and dangerous to be on the street,” he said. “The fact that you had a camera with a press ID didn’t seem to matter.”
During the week of the RNC, police detained or arrested nearly 50 journalists, including independent media and traditional media journalists, according to the Minnesota Independent. Some were arrested violently and sustained injuries inflicted by police, actions that drew a sharp rebuke from the organization Reporters Without Borders. Some journalists were released right away, but many spent at least a night in jail. These events illustrate the challenges journalists face in covering this type of story. A series of legal questions arise around issues of censorship, prior restraint and newsgathering restrictions all related to First Amendment rights.