Off the Record: The Press, the Government, and the War Over Anonymous Sources
By Norman Pearlstine
Farrar, Straus, and Giroux, 2007

Review by Ronald Goldfarb

 

 

 

We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age
By Scott Grant
The Free Press, 2007

Review by Ronald Goldfarb

 

 

 

These two recent books explore interesting questions about law and media. One reviews the contentious relationship between the press and the courts when claims are made that the confidentiality of anonymous news sources should be protected under the First Amendment or shield laws. The other deals with the fundamental question, who is a journalist and thus entitled to whatever benefits and protections may be available to the press? The first issue has been debated for a century and recently was in the national news when then-New York Times reporter Judith Miller was jailed for refusing to name her source after columnist Robert Novak outed a CIA official. The latter issue is an evolving one, new to the law as a result of the advent and implementation of the Internet and the increasing activities of bloggers.

Off the Record: The Press, the Government, and the War Over Anonymous Sources is the story of Time magazine’s role in the Valerie Plame outing and the Judith Miller incarceration. More importantly, it conveys an influential insider’s views about First Amendment protections of reporters and anonymous sources. Time reporter Matt Cooper went to the brink to protect his sources, with his company supporting him at great costs, before testifying at the eleventh hour to the grand jury after his source waived confidentiality. The tactics of the media in this case are told by former Time, Inc. editor-in-chief Norman Pearlstine, a chief participant who broke ranks at the end. His views about anonymous sources are especially interesting. “The public is mighty suspicious of anonymous sources,” who have become “embedded in journalism,” Pearlstine concludes. “I have come to resent and distrust the absence of attribution,” he adds. Pearlstine, who spent three decades as an editor, believes the public views reporters who rely on anonymous sources as lazy or dishonest, a departure from the reverence given the likes of the notorious Deep Throat in the post-Watergate era.

Too much already has been written about the Plame-Miller-Novak episode, so Pearlstine’s narrations are like pouring water into a full glass. But his ruminations about anonymous sources weigh in on an important jurisprudential debate.

It has been an article of faith in the journalistic world that anonymous sources are critical to investigative reporting, and that the public’s right to know is the end result, one protected by the First Amendment. That ideal is personified by the classic whistleblower situation in which scandal is unearthed by a brave insider who the press protects by an explicit agreement to keep his or her identity confidential.

But the reality often is, as the Plame case demonstrated, that the press can be misused by insiders who wish to hurt someone by leaking harmful information about them, or to manipulate the media by leaking information they want disclosed. This mischievous practice is known to reporters, some of whom are candid about the perniciousness of those practices, common in the highest precincts of Washington. Max Frankel, former New York Times executive editor, confessed in a recent magazine article on the subject that much anonymous sourcing in the nation’s capital is “one continuing round of professional and social contacts and cooperative and competitive exchanges of information” by which government officials “shape a story” and “advance their interests.” Pearlstine is frank about the dangers of this tacit arrangement, conceding “sources are rarely altruistic. They usually have an agenda.”

The United States Supreme Court ruled in an important case in 1972, Branzburg v. Hayes, the First Amendment does not immunize reporters who protect anonymous sources. The meaning of the decision has been debated and litigated by the media and their lawyers ever since, but the precedent has been followed by federal courts. All but one state has adopted shield laws, by statute or judicial decisions, stating who and when sources may be legally protected. In transgressing such statutes, reporters often feel they are engaged in a form of high-minded civil disobedience. Subpoenas to, and incarcerations of, reporters have jumped in recent decades, so the issue is of serious contemporary importance.

Pearlstine’s views differed from that of the New York Times and the general press. In his judgment corporations must be especially responsible about conducting civil disobedience, lest the press lose its authority to criticize others who break the law. Thus, Time magazine’s position was to join in the legal battles in the case of its reporter, Matt Cooper, but to acquiesce when the courts’ rulings were final. Pearlstine’s view that no journalistic privilege should be absolute subjected him to harsh criticism by many of his professional colleagues.

Pearlstine’s position that “journalists aren’t above the law,” his analysis of reliance on anonymous sources, and his views about a federal shield law all deserve serious consideration. His opinion that a federal shield law should include bloggers (current proposals do not) and not be limited to mainstream media is the subject of the second book under review here, D.C. attorney Scott Gant’s We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age.

Gant’s thesis is “journalism is in flux” with the advent of electronic publications. The Web is the apex of journalistic democracy as it “makes it possible for citizens to think in public together.” Its accessibility is extraordinary, as about 50 million blogs exist globally. Is this grassroots media a part of the press that the First Amendment protects? Is it the 17th century pamphleteer made modern? Is it elitist that more than 80 percent of professional journalists deny bloggers are journalists? Or is there a fundamental difference between news reporting subjected to standards of review by professional editors, and the unregulated ability of anyone to say anything on the Internet?

Gant traces First Amendment history in making the case that bloggers are performing press functions that are comparable to traditional media. In his view, journalism is an activity, not a status; it is an endeavor, not a job title.

In this conclusion he is supported by some recent court decisions. One held that a Web site operator is a publisher and covered by the state’s (California) shield law. “Courts ought not cling too fiercely to traditional conceptions of newsgathering,” the court ruled. A law professor who specializes in the evolving law of the Internet agrees that “there is no principled distinction between a New York Times reporter and a blogger,” a conclusion I hesitate to adopt. Anonymous sources on the Internet are, one journalism professor opined, the “business model that is designed to manufacture mischief in large volume.” Gant’s argument that bad bloggers can be held responsible for their misconduct may be naïve. But his point, that mainstream media has their own problems of quality control, is correct.

In today’s high-stakes, intellectual property rights battles, courts are increasingly called upon to decide conflicts over the question, who is a journalist, as happened in the litigation between Microsoft and Netscape, where the confidentiality of interviews was the issue.

The definition of author or journalist can be consequential. Who is covered by shield laws? Who is credentialed to sit in reserved places for the press to observe Congress, the Supreme Court, or the White House? As Gant reports, the blogosphere “press” is discriminated against in this preferential selection process.

If preferences for certain kinds of press are created by government or by media, the public is not well served. These preferences are varied and important. Postal rate and access preferences may be outdated, self-protective, elitist. Most definitions of the press prejudice electronic forms of distribution. If dissemination of information and ideas is a fundamental right, as Gant suggests, how can disparate treatment of categories of journalists be rationalized? Is there such a thing as illegitimate news? Is any distinction pernicious, or are there rational and fair ones that should bring the modern era into synch with our constitutional values?

Gant would err on the side of inclusiveness, so citizen journalism could evolve to serve the public, which increasingly gets much of its news from the Internet. Since the press rationalizes its access as a representative for the public, why not allow the public to be its own press? The old Liebling line that the First Amendment is for the benefit of the owners of the press surfaced an antidemocratic, but prevalent, notion.

How vast an unregulated public should have press rights beyond the right to write? The image of the noble pamphleteer is as stereotypical as is that of the amateur hobbyist in a bathrobe at the kitchen table sending out critiques of public officials. Media such as Slate already have institutionalized electronic news and criticism. How many blogging I. F. Stones are out there, as well? How many Abraham Zapruders? At the Libby trial, the court accredited 100 reporters, 10 percent of them were bloggers. The recent tragedy at Virginia Tech made immediate national news when students provided cell phone photos of the incident to mainstream media. Might this be the model for the journalistic partnership of the future?

Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer.

Patriots and Cosmopolitans: Hidden Histories of American Law
By John Fabian Witt
Harvard University Press, 2007

Review By James Srodes

There is no more central legal issue in debate these days than whether we are unique among the nations of the world for our structure of laws and liberties or whether we change them as convenient fashion dictates. This collection of four answers by Columbia University legal scholar John Fabian Witt illuminates that question as well as provokes those of us who think we already have the answer.

What this book is not is a knee-jerk rant against President George W. Bush and his often cringe-making exceptions to the rules of criminal procedure as he prosecutes the various military campaigns of the day. Nonetheless, the Bush legal tactics are among the questions put on the table for examination.

It does not give away the book’s focus to reveal that Witt does believe the American nationhood is rooted both in fundamental concepts of law and in the changing interpretation of those laws by an increasingly activist network of courts and, most provocatively, by a self-interested scrum of lawyers.

Other nations are governed by laws, to be sure, Witt concedes. Yet he argues America is different.

“In the United States, law and constitutionalism have also created a people, the ‘We the People’ of the U.S. Constitution’s preamble. More than in any other nation-state around the globe, a robust national identity rests on a foundation of constitutive legal texts. The interpretation of these texts—the Constitution and the Bill of Rights—has been vested chiefly in the nation’s jurists. As countless past observers of the American experience have noted, American nationhood thus rests distractively in important respects on legal–Constitutional foundations,” Witt says.

Some nations (he cites Germany) rest their identity on a shared ethnic descent. Others such as France and many Latin American countries change their legal–constitutional foundations with regularity even as they cling to political traditions. When set against those nations, American nationhood is often misunderstood. Its contradiction is to assert that the United States is separate and equal to all other nations, yet, at the same time, it proclaims its exceptionalism because it adheres to universal truths applicable to all mankind.

So, which is it? Witt’s four stories argue we are both the same as everyone else and unique at the same time.

“The legal history of American nationhood is characterized by both variety and constraint, multiplicity and limits, porousness and bounds. To put it differently and more precisely, American nationhood has carved out a tradition of bounded contingency in the law. ‘Bounded contingency’ emphasizes the permeability of American borders to global influences. It emphasizes the many possible paths open to legal and constitutional development in the United States, the many possible national identities open to self-described Americans, and the many interests that may be advanced by invoking the nation,” he argues.

What Witt is describing is less an architecture than a constant struggle between two conflicting views, one that looks to the common themes of law that operate in the global arena and those precepts and procedures that belong to us and no one else. Another crucial difference is the amount of legislative power we have devolved onto our courts and our law practitioners over the centuries; a characteristic that causes the civil servants of our European Community allies to look askance at us. Rather than sullenly obey the dictates of unelected bureaucrats, we are, God bless us, a litigious society.

Witt’s first story about the clash between constitutional authors James Madison and James Wilson gives us a clear look at the schizophrenic beginnings of our attitudes toward our national structure.

Madison, of course, was the great synthesizer of the Federalist theory that led to a republic of widespread popular democracy, plus checks and balances. Wilson, a Scottish immigrant, had become the leading attorney in Philadelphia, and would be both a signer of the Declaration of Independence and the Constitution.

If anything, the successful conclusion of the War of Independence made America even more unstable and violent than it had been. This helped shape the attitudes of Founders such as Wilson, whose metaphor was the pyramid which had a broad popular franchise as a base but which funneled real power upward to the better class of men—men of the law such as himself. Madison, Benjamin Franklin, and others knew differently. They sought to construct a machine that would be flexible enough to change gears and alter legal constraints to fit a changing world while providing stability based on credible equality and justice.

If Wilson’s pyramid was a failure as a legal concept for the new nation, the machinery that was finally constructed by Madison and the Federalists—even with the addition of the Bill of Rights—did not seamlessly produce an ideal structure of laws that guaranteed the rights of all citizens even as it promoted the stability of the society.

It is this point that brings Witt to the tale of Elias Hill, a severely crippled but charismatic black preacher, who in 1871, six years after the end of the Civil War, led 245 of his congregation of former slaves to Liberia to find the full citizenship that was denied them even by a Reconstruction-era American government bent on eradicating slavery.

The point is, of course, that laws alone do not guarantee either liberty or justice. Hill’s congregation lay in York County, South Carolina, a part of the Piedmont that was then and remained until just recently the epicenter of antiblack racist politics, not just for the state, but for the entire region. While leaders such as Frederick Douglass espoused a faith that African Americans would soon achieve the full rights of citizenship, black communities closer to the violent cultures of the formerly Confederate South were understandably skeptical.

There is a little irony to the conclusion of this tale in that the Hill colonists, along with other Americans of African descent who arrived in Liberia as self-exiles, brought with them a determination to create a United States in their new homeland; they also brought with them some of the seeds of failure. Liberia’s African Americans themselves became an elite that did not hesitate to exploit the indigenous people and even turned to slave labor to build considerable wealth.

If the Hill emigration demonstrates the difficulty in duplicating the American constitutional experience, the story of internationalist Crystal Eastman shows how unlikely it is to graft the European legal culture onto our native root stock. Crystal and her more famous brother, Max, who became the editor of the radical magazine The Masses, came from a family committed to the 19th century reform causes of feminism and abolition. As a lawyer Crystal first worked to enforce standards of industrial safety, but as America drifted toward involvement in World War I, her focus shifted to European movements for world peace, women’s suffrage, and international human rights.

Individual rights were hardly part of the American landscape for the first century and a half of its history, the Bill of Rights notwithstanding. Witt quotes historian Henry Steele Commager as noting between 1789 and 1937 that there had not been “… a single case … where the Supreme Court has protected freedom of speech, press, assembly, or petition against congressional attack.”

Once America was in the war for good, the administration of Woodrow Wilson trampled on civil liberties to an extent that Bush administration depredations pale in comparison. Global pacifism in Wilsonian eyes became treason, so Crystal and her colleagues tactically shifted focus to an activist defense of domestic civil liberties—protection of freedom or press, speech, and assembly. Out of this came as an unintended consequence the founding of what became the American Civil Liberties Union.

Unintended consequences also are the theme of Witt’s fourth story about the unlikely friendship and alliance that sprang up between the legendary dean of Harvard Law School Roscoe Pound and that outrageously flamboyant “King of Torts” Melvin Belli, and its impact on the founding of the American Trial Lawyers Association.

Pound had been nationally famous even before he became dean of Harvard’s law school in 1916 for his argument that the historic common law remedy for workmen’s injuries was outdated and unfair because it pitted individuals against more powerful corporate interests in what, at best, was a sporting contest rather than an attempt to reach justice. He was a fan of administrative law bureaucracies such as juvenile bureaus and many of the administrative solutions of legal disputes that were the foundation of Franklin D. Roosevelt’s New Deal 20 years later.

Yet by then Pound had turned against administrative solutions to social problems because he felt individual needs too often got lost in the maze of rules and regulations that had addicted bureaucrats. By the 1950s Belli already was gathering personal injury lawyers across the nation into a small, but effective, clearinghouse for information on tactics, standards of damage awards, and trial tactics. The friendship between the two men was deeply personal and highly effective as Pound freely gave of his prestige and Belli of his boundless energy in the creation of a new subset of the American bar that clearly has become more than a common law alternative to the rigid indifference of social service agencies.

Witt’s four tales are cautionary ones to be sure. But also they are a creative consideration of who we are as a nation of laws, indivisible but ever changing. The book makes you think even as you enjoy its stories.

Author James Srodes’s latest book is Franklin: The Essential Founding Father.