Apr 092013

Both Ken @ Popehat and “Gideon” at his blog have posts on the position reporter Jana Winter finds herself in. To briefly summarize, the contents of the diary of the alleged Aurora, CO, shooter ended up in her possession, ostensibly given to her by a law enforcement officer with access to it and in violation of judicial orders forbidding its disclosure. She then reported on those contents. She is not in trouble for having done the reporting; the problem is, the investigation into who broke the law by providing the information to her in the first place has reached an apparent dead end, and thus the judge in the case wants to compel her, under penalty of contempt that might include jailing, to disclose the source who provided it, despite her having promised to protect the source’s identity.

In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.

Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.

But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future. 

Ken began with a personal anecdote that shaped his view, so I will include mine. On my watch as editor of the high school newspaper, we accepted, under condition of anonymity, a letter confessing to an act of politically-motivated criminal mischief. (More specifically, the source of the letter claimed to have ripped up the “no parking” signs and painted very real-looking parking spaces on the pavement in order to protest a much-loathed-by-students policy forbidding students from parking on the streets neighboring the high school.) Neither the underlying defiant act, nor the letter, sat well with school officials. Enraged with embarrassment that this crime had happened under their noses, together with the town police they went on the warpath to find the culprits. The miscreant(s) had woken the bear, and he was hungry for fresh meat, even if it was that of journalists. I was called into the principal’s office and (erroneously) threatened with charges of perjury if I did not divulge the source of the letter. (Important note: as powerful as public officials may be, their power does not necessarily correlate with their correctness.) I refused and got a lawyer instead.

Would the world have ended if I’d divulged the source? Maybe not. Maybe no one would have even gone to jail. But here was an issue relevant to the community that only with the help of the source we were able to fully report on. (Indeed, many students wanted to know what had transpired, because seeing the spaces and no signs, they’d parked in them and then gotten tickets.) If as a journalist I couldn’t get that sort of assistance because my promises of anonymity were meaningless, there would be a lot less that I could report on – no matter how much the community really needed to know it. Which brings us back to the situation in Aurora.

Ken and Gideon are likely right that in this instance the divulging of the diary’s contents by the police was a craven abuse of its power and position – and in a way that potentially represents real harm to the due process rights of the defendant. But I don’t think there is a way we could except this particular situation from the shield law (“shield law” being the term for the law generally permitting journalists to protect the identity of their sources, also sometimes referred to as “newsman’s privilege” or something similar) without doing some violence to the shield law’s durability and utility in other ways.

Since the 1970s we have seen the journalist’s privilege to protect a source as a qualified one that can be balanced against other compelling state interests. Even the Colorado shield law statute makes clear the privilege is not absolute. But great care must be made to not back away from it too easily – and subsequent jurisprudence supports this view – for the very reasons Ken and Gideon contemplate for why they may be tempted to do so here: because police power can so easily be abused.

It wasn’t just abused today, in this instance, but may also be tomorrow in many others, and we need to be able to know about it. But we are much less likely to when sources are chilled from coming forward and informing journalists about the things the public needs them to report on. Today, yes, it seems the anonymous police source has sought the shield of anonymity simply to protect himself from the consequences for having done something both highly illegal and gravely wrong. But what if tomorrow an anonymous police source seeks the shield of anonymity to protect it for when he does something that might similarly be illegal but, on balance, nonetheless right? Like, for instance, whistleblowing on other police abuse?

Whenever the shield law is asserted it’s never really about that particular situation; it’s always about being able to assert it in future situations, and that ability is undermined when the assertion can so easily be countermanded with post hoc judicial review. Both sources and reporters need a way to anticipate whether the promise of anonymity will either real or illusory, and the more frequently and more easily the promise is punctured the more illusory it will become. True, the Colorado shield law statute does contemplate situations under which the shield might be made to yield, but for the shield to retain any meaning these situations must be defined as narrowly as possible, practically to the point of never and even in the face of extremely compelling countervailing reasons. It cannot be denied based on merit of the reporter’s story, for no one is fit to arbitrate that worth.  It cannot be denied based on the specific crime revealed by the information the source divulged, nor can it be denied based on crime potentially committed when the source divulged it, for no amount of journalist testimony will ever provide a cure for those crimes, and it’s sometimes only that promise of anonymity that let us know such a crime had even occurred.  And it cannot be denied based on the interest, no matter how valid or important, that might potentially be jeopardized by the privilege’s assertion, for that is never the only interest in play.

First Amendment-enabled protections like shield laws provide an escape valve from the tyranny abusive police actions present. If, as Ken and Gideon ably argue, we need to ensure we have some defense against this power, then we need to sure that important safety measures such as newsman’s privilege remain in place, as potent as ever, to protect us.

  7 Responses to “A shielding law”

  1. […] 2: For further analysis and opinion, see this excellent post by Cathy Gellis and this one by the inimitable Ken […]

  2. “then we need to sure that important safety measures such as newsman’s privilege remain in place, as potent as ever, to protect us.”

    But how does your suggestion of having an essentially absolute newsman’s privilege protect James Holmes and those defendants who find themselves in a similar situation? Are such defendants not “us”?

    • They are us. But it’s not like forcing the reporter to divulge the source will un-compromise his due process rights. If anything, calling further attention to the leak will only further undermine them.

      • “But it’s not like forcing the reporter to divulge the source will un-compromise his due process rights.”

        I agree that the bell cannot be un-rung. However, like you argue in your post, we should be forward-looking as well. An absolute privilege seems to invite abuse by law enforcement: Don’t like the defendant and want to violate a gag order? Then simply launder the information through a willing reporter.

  3. Are you seriously suggesting we can’t ever touch the concept of a shield law because we are incapable of trusting judges to tell the difference between legitimate whistle blowing or outright gaming of the system by the government (and not just the government, but misconduct and abuse of power on their part is doubly troublesome given their inherit privilege) to serve it’s own purpose while trampling the rights of the citizen, no matter how you may feel about the citizen?

    Because if that really is your position I call complete and total BS on it – this kind of self-serving leaking is a gross misuse of power and position. I think any reasonable and rational person that cherishes a stable and just society would have to say that in this instance the journalist has absolutely no right to protect this “source” since the clear intent of the source was to serve their own purposes, not expose an injustice or inherit flaw in the system. THERE WAS NO WHISTLE BLOWING in this leak, and all this handwaving about future whistle blowing is a big fat red herring.

    If we can’t even agree on this than I see the “shield law” as what it apparently is today – a shield to use the press in a self serving manner with no fear of repercussion for reprehensible and flat out illegal behavior. That is a distasteful and completely unsatisfactory position to me – and hopefully anyone else who values concepts such as due process or justice.

    • “Are you seriously suggesting we can’t ever touch the concept of a shield law because we are incapable of trusting judges […]?”

      No, that’s not what I’m saying. What I’m saying is that for the shield law to ever have value it needs to be much more absolute, not subject to puncture even when there are good reasons to.

  4. […] subject of posts by Gideon at A Public Defender, Ken White at Popehat and Cathy Gellis at, well, Cathy Gellis’ Blog.  As these posts show, whenever a clash of constitutional rights arises, it presents an extremely […]

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