Saturday, November 18, 2006

Reporters, Shields, and Skepticism

This past week our law school hosted a lecture by Judith Miller. As you may recall, Ms. Miller was jailed for refusing to reveal her source (Scooter Libby) in connection with a federal grand jury investigation surrounding the so-called “outing” of Valerie Plame. Miller was jailed for 85 days, securing her release by ultimately testifying based on a release signed by Libby allowing her to reveal her source. Some background on those events can be found at the Wikipedia entry for Miller, located here: Miller’s own website can be found here:

Miller’s message was essentially that the scales of liberty are tipping toward the government and away from civil liberties as a result of compromises based on anti-terrorism and national security justification. She decries the growing number of classified documents, as well as the prosecutorial attempts targeting reporters as a source of information in various government and/or criminal investigations. (In fact, her speech at Creighton sounds much the same as the speech she gave at Kansas State on November 11, which is chronicled in this news account: . I guess you can’t fault someone for trying to maximize revenues from the same work.)

Her solution, in part, involves shield laws, which protect the reporter’s right not to reveal confidential sources. A majority of states have such laws, but there is no federal privilege against disclosure. Testimonial privileges are in derogation of truth in particular matters, but they may serve larger purposes. Here, the purpose of a privilege may allow sources to speak more freely to reporters, knowing that their identities may not be released. That may facilitate “whistleblowing”, which is a friendly word for “leaking” confidential information about supposed wrongdoing. But it may also allow government officials and others to simply feed a news reporter inaccurate and damaging information about others. Knowing that your identity could, in some cases, be revealed might well deter some of that misbehavior.

Ms. Miller received some interesting questions after her speech, which in my view she struggled somewhat to answer. My smart friend and colleague Collin Mangrum asked whether she would support a privilege subject to in camera review by a judge. She sounded intrigued by this possibility, but declined to embrace it categorically. Her comments suggested that ultimately, the responsibility for accurate reporting was on the reporter, and that the reporter had to live with his/her conscience if his reporting cost lives or created other harms. Thus, the ultimate source of accountability for a reporter is himself/herself, not someone else.

Ironically, she also decried the emergence of alternative media sources as potentially decreasing resources that the mainstream (or as Rush Limbaugh calls them, “drive-by”) media can invest in truth finding. She also did not like the fact that they can criticize people or stories without seeming to have an obligation to be correct. In the Kansas State speech, she is reported as criticizing bloggers in this manner:
“The blurring of entertainment and news and the relaxing of journalistic standards can be seen in online bloggers who are critical of people without giving them an opportunity to respond or who don't post corrections when they learn that what they have posted is wrong, she said.
"I'm worried about bloggers," she said. "(A post) starts as a rumor and within 24 hours it's repeated as fact."
While she advocates a federal shield law to protect mainstream journalists from divulging their sources, she doesn't favor extending that to bloggers who don't follow the standards and ethnics of the journalism industry.”

I don’t recall the specific words she used at Creighton, but I recall a similar sentiment being expressed: only the elites can be trusted; the bloggers who criticize those elites for their biases or who bring out facts not reported do not deserve the same trust and/or respect.

Ultimately, this is all about skepticism. The mainstream media loves to be skeptical about government (especially conservative government policies), and it seeks to incubate that skepticism in its readers. However, the mainstream media would like to think of itself as an institution of elites that should be beyond skepticism or scrutiny. Unfortunately their record reflects a considerable bias on one side of the ideological continuum, and bloggers and other independent media have called attention to this issue. That is depleting market share for major mainstream news outlets, as people look to the truth from other sources. Ultimately, that may mean fewer resources are devoted to reporting. Or it may mean they get the message and seek to become more “fair and balanced.”

So, my friends, be kind to yourselves this weekend. Breathe deeply. And keep reading bloggers and other alternative media, just to make the elites in the mainstream media nervous.
Happy Saturday.

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