Tag Archives: New York Times

Live-Blogging the NYCLA Forum on Protecting Journalists and Their Confidential Sources

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.

The panelists at the NYCLA forum

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)

Speakers:

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.

Moderator:

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

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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.

8:06 p.m.: In response to a question about timeliness of this issue, Zucker brings up a current case of a Detroit Free Press reporter who will not divulge his sources.

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.

NYCLA forum

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.

Judith Miller sign at NYCLA forum

AUDIO: Listen to Judith Miller after the forum talk about why she would make the same decision today

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.

6:40 p.m.: Joshua Kors sets up a presentation related to his reporting on veterans’ issues; it’s a Bob Woodruff package on ABC’s World News Tonight with Charlie Gibson. (Warning: The clip loads very slowly.)

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.

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.

NYCLA room

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Journalism and Gaza

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.

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Felony Disenfranchisement

(This post is similar to the one that I originally wrote for this Web site)

Yesterday my colleague Amy Wysowski began an interesting and relevant conversation about this issue especially as we rapidly approach this year’s Election Day. Also, another colleague, Jackie Linge, drawing on her prior legal experience, added fascinating insight (as well as the human side of the story).

After reading the comments from Amy’s post, I thought maybe this issue needed its own post for ongoing discussion.

First, if you are interested in knowing what New York State felonies are, this site provides a list by offense level. Did you know there are A1 and A2 level felonies, B violent felonies, B non-violent felonies, C violent felonies, C non-violent felonies, D violent felonies, D non-violent felonies, and E felonies? Have a look at the lists. You may be surprised by what you see — and let’s not forget the broad discretion prosecutors have in deciding what charges should be brought in cases.

In New York State if you are convicted of any of the above, you will lose your right to vote (until you are on probation). It is also very hard to get a job (much less a good one) after a felony conviction.

FairVote2020 has some neat interactive charts and maps with loads of good information about felony disenfranchisement across the U.S. by state.

Dan Filler, blogging at the Faculty Lounge, writes:

Felon disenfranchisement has an intuitive appeal – we deny the right to vote to those who breach the fundamental social contract and violate the law.  But these laws have deeply racist roots and a dramatically disparate racial impact today.  There is also a deep democratic problem with the policy; as we criminalize and prosecute more and more conduct, we passively strip more and more citizens of voting rights.

Most states added felon disenfranchisement laws in the aftermath of the Civil War. It is no coincidence that more people gained the right to vote at that exact moment (at least in writing on the Federal level, via the 13th, 14th, 15th, and later the 19th amendments). Only two states allow everyone to vote (including those who are incarcerated): Vermont and Maine. Those two states are each almost 97% white (the highest white populations by state).

For more information and the latest news, see the Right To Vote Campaign, a collaboration between the ACLU, the Brennan Center for Justice, and The Sentencing Project. The Right To Vote Campaign has led on this issue, but its own Web site has been down recently for some reason.

Late Update: See this New York Times article from Sunday’s edition, “States Restore Voting Rights for Ex-Convicts, but Issue Remains Politically Sensitive” and accompanying multimedia map from The Sentencing Project.

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A Few Stories Eclipsed By the Conventions

With all the political convention coverage the last two weeks, you might not realize that there was other worthy news during those two weeks. NYT Op-Ed Contributor William Falk keeps tabs on a few stories we may have missed, but that we might be hearing about again pretty soon.

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The Sanitized War Disconnect

The New York Times has a front-page article today by Michael Kamber and Tim Arango about the increasing difficulty photojournalists are having with an American military that is attempting to control graphic images from the war in Iraq. One of the photojournalists featured in the Times’ article is Zoriah Miller, who was recently interviewed on Democracy Now! after he was barred from the Marine Corps for publishing graphic photos showing Marines killed in a suicide attack last month. In the Times’ article, Miller says:

“The fact that the images I took of the suicide bombing — which are just photographs of something that happens every day all across the country — the fact that these photos have been so incredibly shocking to people, says that whatever they are doing to limit this type of photo getting out, it is working.”

The Times’ article says that “searches and interviews turned up fewer than a half-dozen graphic photographs of dead American soldiers,” and, by a recent count, only a handful of Western photographers are covering the war today.

One is forced to wonder, as Miller implies above, if the public saw more of these photos — which in reality show the true nature of war and the consequences of violence — would there be the same amount of passivity regarding the ongoing unpopular war?

Very Late Update: The New York Times’ Public Editor weighs in on the details of the Times’ decisions to publish war photographs.

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On the Definition of “Success”

Due to Democratic presidential candidate Senator Barack Obama’s trip to Iraq early this past week, there’s been a lot of seeming consensus in the news media again around the idea that the so-called “surge” has succeeded. The campaign of Republican presidential candidate Senator John McCain has been aggressively pushing this narrative mostly because it’s virtually the only thing McCain is running on now (i.e. saying he was right about the surge). However, early in the week the New York Times rejected McCain’s op-ed piece (which was a rebuttal to Obama’s op-ed piece a week earlier) on the grounds that it offered no new information (in terms of overall strategy with regard to Iraq and Afghanistan) and that it did not define “victory” (read: success) in Iraq.

Let’s have a look at the definition of “success”:

success: (noun) the accomplishment of an aim or purpose

While on his whirlwind international tour this week, Obama was interviewed by CBS News anchor Katie Couric. She asked him three different times, within a few minutes, some variation of the McCain Campaign talking point: “Why don’t you admit that the surge has succeeded?” Obama said there was no doubt that the work U.S. troops did was one of the things that had helped to reduce violence (see below for more info on what the other things were). Obama has consistently said the aim or purpose of the Bush surge strategy was to reduce violence enough to enable significant political progress between different Iraqi factions and interests; and to bring an end to the de facto civil war which had engulfed the nation in sectarian violence.

So has this aim or purpose been met? If adding tens of thousands of additional troops wasn’t the only thing that contributed to a reduction in violence, what were the other things? Can we actually, in all honesty, say that the surge has succeeded? Was the only goal of the surge to reduce violence? And if so, now what?

Independent journalist Dahr Jamail was interviewed on Democracy Now! back in January right after President Bush touted the surge as a success in his SOTU address. Jamail emphasized that we understand the surge (or more appropriately termed, escalation) in the context of a then almost five-year war.

JAMAIL: Well, the surge—and what’s very interesting, too, is not only do we have a US surge, according to Mr. Bush, we have an Iraqi surge—two Iraqi surges, actually, the first of which he mentioned in his talk last night, the concerned citizens or the awakening groups. Well, it’s really interesting that the same time last year, as Mr. Bush was happily doing during his speech, comparing where were we last year to this year, well, last year, these same people, these concerned local citizens, according to the US military, were called al-Qaeda or insurgents or terrorists. And now that there’s 80,000 of them on the US payroll, they’re concerned citizens and they’re an Iraqi surge. And these same people, as we look at the situation on the ground, this is causing deep, deep—a deepening of the political divisions in the country. The US-backed Prime Minister Nouri al-Maliki has been vehemently opposed to this concerned citizens group backed by the US military in Iraq, these people, most of which are former resistance fighters, because they’re now a threat to the Iraqi government forces. So that’s causing huge problems on the ground in Iraq today. And if we look at the situation, the military recently announced within the last month that there was a sevenfold increase in the use of air power last year. So these are some of the reasons why right now there are fewer US troops dying, but the reality is they’re paying off resistance fighters to stand down. And Muqtada al-Sadr, who commands the largest militia in the country, has his militia on stand-down until next month, where that stand-down might end and things would change dramatically.

The current debate between the presidential candidates about who was right about the surge (and moderated by the news media) would, I think, like Jamail, be better understood in terms of the broader context of the Iraq War as a whole. Not to mention framing it using clear defintions of words like “success.” You would think that the news media that did so poorly in covering the rush to war in 2002-03 would try a little harder to get this part of the story right. Or maybe not.

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