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The “Free Flow Of (Mis)Information Act”?

FORECASTS & TRENDS E-LETTER
By Gary D. Halbert
July 26, 2005

IN THIS ISSUE:

1.  Besieged Reporters?

2.  Protections Offered By The Bill

3.  The Media Gets On Board

4.  Not Everyone Is Convinced

5.  Is This Bill Really Necessary?

Introduction

The “Free Flow of Information Act” (H.R. 581), allowing journalists to keep their sources confidential, has received relatively little attention since its introduction in February of this year.  So little attention, in fact, that I was totally unaware of it until one of my staff members asked my opinion of the bill last week.  Those of you who regularly read my E-Letter know that media bias is one of my pet peeves.  Therefore, I thought it would be interesting to research this new media and journalism bill and see just exactly what protections it offered the poor, beleaguered press that they do not currently enjoy.

This new bill moving through Congress is not along the same lines as media bias articles I have written in the past.  It is not about the many conservative and liberal pundits whose articles, broadcasts and commentaries are guaranteed to contain their bias, one way or the other.  Instead, this new bill contains new privacy protections for the mainstream press such as the network news organizations, cable news talking heads, and scores of newspapers who put on the pretense of being objective, but who actually have a liberal agenda.

In light of the recent revelation of the Watergate Era’s “Deep Throat,” the current flap with Karl Rove’s alleged involvement in outing Valerie Plame as a CIA operative, and New York Times reporter Judith Miller’s stint in jail for refusing to disclose her source, you would think that more attention would be paid to this bill, which would protect the privacy of reporters’ sources.  In fact, even many of the conservative outlets for news and information are not even talking about this bill, which is a big surprise.

Even more surprising to me is that the bill was introduced by two Republicans, House Representative Mike Pence and Senator Richard Lugar, both of Indiana.  As a general rule, Republicans tend to be conservative, and conservatives tend to get a short shrift in the mainstream media.  Thus, a bill offering wide immunity from not disclosing a source is hardly one from the conservative playbook.

In this week’s E-Letter, I’m going to dissect the Free Flow of Information Act, discuss the “media shield laws” that are prevalent in the various states, and then suggest some reasons why this bill is not getting the kind of press coverage we might expect.

Besieged Reporters?

Before going into the details of this legislation, a little background may be useful.  First, it is important to know that reporters are not routinely requested to furnish confidential sources for the bulk of their news stories.  The proposed new legislation is intended to shield reporters in relation to subpoenas issued in civil and criminal court proceedings.  Thus, since most news stories don’t end up being the basis of civil or criminal court proceedings, most reporters may never be in a situation where this law would even apply.  But some will, no doubt.

Next, in those situations that do involve subpoenas for civil or criminal action, it really depends upon whether the matter is a state law issue or a federal law issue.  Thirty-one states already have media shield laws that apply to state court proceedings.  However, these laws do not apply to federal matters, and since many news reports reach across state boundaries, confusion often exists as to the extent of any state protection on national stories.

In matters involving federal issues, there is no single standard.  In the 1970s, the Supreme Court ruled that the First Amendment does not protect journalists from being required to reveal confidential sources.  Since then, a number of media shield laws have been introduced in Congress, but none have been passed.

To further complicate matters, some federal courts have issued conflicting rulings on the matter of confidentiality of a reporter’s sources, and the Department of Justice issued its own guidelines in 1973, but these do not apply in all cases.  Thus, journalists complain that they dwell in a “no-man’s land” where there are no clear rules.

The consequences of not providing information or sources when subpoenaed by the courts usually include being found guilty of contempt of court and receiving at least some time in jail.  Judith Miller of the NY Times is the most recent example of this penalty for not revealing a source – she is now in jail for contempt of court, but she is not alone.  In 2001 and 2002, a Houston, Texas author spent 168 days in jail for refusing to break a promise of confidentiality to her sources.

Legislation To The Rescue

The latest attempt at a media shield law is designed to provide a single standard for journalistic confidentiality, at least as far as federal cases go.  It is supported by a bipartisan group of Congressmen, with 52 House members and 10 Senators signing on as co-sponsors.  When introducing H.R. 581, Republican House member Mike Pence of Indiana stated:

“…last year almost a dozen reporters were served or threatened with jail sentences in at least three different Federal jurisdictions for refusing to reveal confidential sources. Compelling reporters to testify and, in particular, compelling them to reveal the identity of their confidential sources is a detriment to the public interest. Without the promise of confidentiality, many important conduits of information about government activity would be shut down.”

Senator Richard Lugar, sponsor of S. 340, the identical Senate version of this legislation, added in his introduction: 

“It is important that we ensure reporters certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment. This includes the right to refuse to reveal confidential sources. Without such protection, many whistleblowers will refuse to step forward and reporters will be disinclined to provide our constituents with the information that they have a right to know. Promises of confidentiality are essential to the flow of information the public needs about its government.”

The sponsors go on to say that this legislation is really just a formal adoption of the Department of Justice guidelines that have been in place since 1973.  They argue that the legislation is simply intended to level the playing field for the press by providing a standard set of rules that would apply in all federal cases.

However, the legislation also goes further than just protecting a journalist’s sources.  It also prevents having other records, documents or tapes held by a third party from being subpoenaed without the journalist’s knowledge, and would grant the journalist the right to contest the subpoena.  So, for example, prosecutors would be prevented from doing an end-run around the reporter by attempting to determine the identity of a confidential source from telephone and e-mail records.

It is also important to note that the sponsors of the legislation modified the bills to address matters of national security.  A revised version now provides that reporters could be compelled to disclose private sources of information in national security matters, but only after all other efforts to uncover the information have been extinguished.  And only if the source disclosure by the journalist would prevent “imminent and actual harm to national security.”

Of course, the question of harm to national security is in the eyes of the beholder.  I envision that there will be times when the Justice Department will deem something to be a threat to national security that the news media will not.  This just guarantees further court action to better define just what is an issue of national security.  And look for this to be a problem in and of itself, since the government is not likely to air items of national security in open court.

The Media Weighs In

The bill would protect publishers, broadcasters and wire services, as well as anyone working for them.  It would also cover freelance journalists under contract with a publisher or broadcaster, but not those without contracts or those who publish only on the Internet.  Thus, as we might expect, the new legislation is supported by some 80 major media and journalistic organizations.  For a complete list of the media organizations supporting this legislation, go to the following Internet address: 

http://www.nppa.org/news_and_events/news/2005/07/shield.html

In various news articles, media supporters of the new bill cite several reasons why it should be passed.  First and foremost, they express the fear that if the new legislation is not passed, thus formally protecting reporters’ private sources, then leads and sources for investigative reporting will dry up. 

This is a point, but we have seen countless stories over the years – as noted above - where whistleblowers and/or anonymous sources have played a role, and their names were never required to be made public.  Even in cases where their names were ultimately revealed, it doesn’t appear that a lack of confidentiality has kept some of the important stories from being aired.  Is the media saying that there are actually lots more juicy stories out there just waiting on source confidentiality before they can be told?  I, for one, doubt that.

Next, the media frets that without this new protection, law enforcement agencies will simply let journalists do the investigative work, and then subpoena their sources.  They point to the recent proliferation of subpoenas issued to journalists as proof that this is occurring.  New York Times columnist William Safire expressed it this way: “Journalists are not the fingers at the end of the long arm of the law.”

While I highly doubt that any qualified law enforcement agency would purposely sit on their hands and wait for journalists to do their job for them, I can believe that these law enforcement agencies would want to utilize any additional evidence or question any additional witness they could in order to strengthen their case.  Depending upon the nature of the issue at hand, I’m not so sure this would be a bad thing.

Finally, the media supporters of H.R. 581 state that the law is not so much protection for journalists as it is protection for the public’s “right to know.”  To the extent that the public is allowed to know about issues that would otherwise have been kept under wraps, I agree.  However, the potential for abuse of this privilege is great, as I will discuss in more detail later on.  Thus, with greater protection will come greater responsibility on the part of journalists.  I hope they are up to the challenge!

Not Everyone Is In Favor

Congressman Pence, one of the bill’s sponsors, is a former radio talk show host, and because he is a former member of the media, some have said that this is a case of journalists protecting their own.  I don’t buy that logic, because conservative radio talk show hosts and mainstream media reporters are two very different breeds.  It may be that Pence’s prior experience in the media, and his hobnobbing with journalists over the years, may have given him insights into what they consider to be infringements on the freedom of the press by the federal government, and this is merely his attempt to remedy them.

Whatever Representative Pence’s motivations may be, there are many other criticisms of the new bill.  First and foremost is the one that has led to the demise of all of the other previous attempts to pass such a law, which is that such a law could interfere with civil and criminal investigations and prosecutions at the federal level. 

Other critics of the new law say that it is simply not needed, and could actually lead to abuses.  Specifically, reporters could make up stories without any fear of having to reveal a source.  Reporting could become rank speculation (some say it’s almost there already).  Considering some of the “news” that surfaced during the presidential election, I can envision that this objection may be the most valid of all.

There are some opponents of the legislation who say that reporters all too often promise confidentiality to sources when they know doing so may be impossible.  For example, a reporter may offer complete confidentiality, knowing that it may not be available under the law.  Perhaps offering confidentiality to the extent allowed by law would still get the story, without the unpleasant legal ramifications. 

Some fear that the level of privilege given to reporters under H.R. 581 is greater than that currently available to doctors and lawyers, and this is unnecessary.  With such privilege, they say, a reporter could protect a known criminal just to get a scoop.  Would the reporter also be exempt from laws prohibiting aiding and abetting a criminal?  It’s now unclear under proposed legislation, and this needs to be addressed before it becomes the law of the land.

There are also those who suggest more criteria for differentiating between a good leak and a bad leak.  For example, a good leak may be one about a crime, while a bad leak is one that is, in and of itself, a crime.  The Valerie Plame case is a good example, where the mere disclosure of the name of a CIA operative can actually be a crime.

Wider source protection could also mean a proliferation of leaks from disgruntled employees of government agencies who would not have to worry about their identity being disclosed.  Of course, this added protection could work for, or against, the sitting administration, but in light of the obvious liberal leanings of the press, you can bet that it would be more beneficial to the liberals than to conservatives.

However, I see a greater potential danger.  If we experience a proliferation of leaks from insiders that later prove to be just disgruntled employees crying “wolf,” the public (and even some journalists) may soon start to turn a deaf ear to the latest revelation.  The risk here is that a truly worthy story could be overlooked by a public weary of bogus leaks.

Accuracy In Media (AIM), a conservative media watchdog organization, has come out against the media shield law citing many of the reasons discussed above.  However, AIM is also concerned that this legislation has become more popular with lawmakers after the jailing of Judith Miller, fearing that members of Congress may be jumping on the bandwagon in hopes of receiving favorable press coverage in return for their support of the bill.  What else is new!?

To support this argument, AIM points to the fact that it was denied an opportunity to testify against the legislation in a July 20 Senate hearing.  Instead, chairman Arlen Specter allowed only nine witnesses, all of whom supported The Free Flow of Information Act.  A tenth witness was to be Deputy Attorney General James Comey, who reportedly would have opposed the bill, but a scheduling conflict prevented him from appearing.  Can you say, stack the deck?

The Justice Department did, however, submit Comey’s testimony in writing.   That testimony criticized the bill as “bad public policy” because it would hamper the DOJ’s ability to “effectively enforce the law and fight terrorism.”  This is somewhat odd, since H.R. 581 is supposed to be based on existing DOJ guidelines.  Of course, with the Bush Administration caught up in the Karl Rove/Valerie Plame leak, it’s going to be hard for them to appear objective on this issue.

Conclusions

Though I write a weekly E-Letter, I do not consider myself to be a “journalist” or “reporter” by any stretch of the imagination.   However, as a commentator, I do peruse the work of many, many journalists in my efforts to find the “story behind the story.”  Since I read the works of journalists with both conservative and liberal biases, I consider myself to be in a position to offer an objective observation in regard to this new legislation.

It would be easy, as a conservative, to declare that this legislation is unnecessary, since conservatives are the most frequent targets of the liberal press.  In many instances, the public’s “right to know” has devolved into the public’s “right to know what the journalist wants you to know.”  However, the sword of justice cuts both ways, and you cannot always judge a proposed law by the situation currently at hand.  You have to see if it would benefit any reporter, especially those out there who really do try to be objective.

By guaranteeing the confidentiality of sources, future administrations may be more forthcoming and honest in their dealings.  While I’m sure my liberal readers will think of this in context of Bush/Haliburton/WMDs/Iraq, I tend to think of it in terms of the Clinton Administration’s abuse of FBI files and IRS audits.  Had a whistleblower known his or her identity would have been kept confidential, perhaps the FBI file abuse and the IRS audits of political enemies would not have become as widespread or gone unpunished.

Thus, I have to say that on balance I support such a law, even though it has within it the potential for abuse by unscrupulous or biased journalists.  However, I believe the bill should be strengthened by adding provisions that make it a crime to publish any story that is intentionally misleading or known to be to be false, even if proven after the fact.  If the Sarbanes-Oxley Act (passed in the wake of Enron and WorldCom) can make it a crime for a corporate officer to knowingly publish false information about a public company, why can’t these same standards apply to journalists?

I also think that the bill should be broadened to include all legitimate journalists, even those whose only outlet is on the Internet.  If you are even a causal user of the Internet, you know that it is a forum for the outrageous as well as the accurate (and everything in between). There is no doubt that the Internet will become an increasingly larger source of information in the future, so why should we leave out journalists who use the web as their only distribution outlet?

The Free Flow of Information Act is getting almost zero coverage in the press, and this is why I chose to bring it to your attention this week.  It has its positives and negatives as I have tried to point out above in a bipartisan way (hard for me to do). 

If passed, there will no doubt be some journalists who will abuse the protection.  On the other hand, there may be more legitimate whistleblowers who will come forward and disclose information that can bring lawbreakers to justice.

While I think the bill has its merits, especially if strengthened as I suggest four paragraphs above (in bold), there is reason for caution in that it is supported widely (although very quietly) by the media, and apparently by many in Congress.  That alone gives cause to follow it closely. 

Very best regards,

Gary D. Halbert

SPECIAL ARTICLES:

Bloggers Need A Shield Law to Protect Us From Legacy Media Inanity
http://www.thenationaldebate.com/blog/archives/2005/03/bloggers_need_a.html

Two opposing views on the Supreme Court:

1.  This court is headed to the left
http://www.pittsburghlive.com/x/tribune-review/opinion/columnists/guests/s_356184.html

2.  ROE V. ROVE
http://www.newyorker.com/printables/talk/050801ta_talk_hertzberg

China's Devalued Concession
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/25/AR2005072501335.html

Clinton's New Job: Defining the Center
http://www.latimes.com/news/nationworld/nation/la-na-dlc26jul26,0,1878987.story?coll=la-home-headlines


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Forecasts & Trends E-Letter is published by ProFutures, Inc. Gary D. Halbert is the president and CEO of ProFutures, Inc. and is the editor of this publication. Information contained herein is taken from sources believed to be reliable but cannot be guaranteed as to its accuracy. Opinions and recommendations herein generally reflect the judgement of Gary D. Halbert (or another named author) and may change at any time without written notice. Market opinions contained herein are intended as general observations and are not intended as specific investment advice. Readers are urged to check with their investment counselors before making any investment decisions. This electronic newsletter does not constitute an offer of sale of any securities. Gary D. Halbert, ProFutures, Inc., and its affiliated companies, its officers, directors and/or employees may or may not have investments in markets or programs mentioned herein. Past results are not necessarily indicative of future results. Reprinting for family or friends is allowed with proper credit. However, republishing (written or electronically) in its entirety or through the use of extensive quotes is prohibited without prior written consent.

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