The News Media vs. the Innocent

Press freedom shouldn't mean defending the guilty at all costs

Steve Chapman | March 27, 2008

Years ago, Ray Donovan, Ronald Reagan's Labor Secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, "Which office do I go to to get my reputation back?"

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the 9/11 attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died. In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the army, a "person of interest." Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, The New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have "destroyed his life" even though "there's not a scintilla of evidence to suggest Dr. Hatfill had anything to do with" the anthrax attacks.

Years later, Hatfill is still awaiting vindication. Last week, he inched closer when the judge ordered Toni Locy, a former USA Today reporter, to disclose her sources about Hatfill—or else face fines of up to $5,000 a day for contempt. A host of news organizations, including Tribune Co., filed a friend-of-the-court brief urging that she be spared from providing evidence.

Here we find ourselves on depressingly familiar ground. Back in 2005, Times reporter Judith Miller refused to say who told her that Valerie Plame was a CIA agent. She went to jail for contempt before finally acknowledging it was vice presidential aide Lewis "Scooter" Libby.

Five reporters didn't want to reveal their sources about Los Alamos nuclear scientist Wen Ho Lee, who was tarred for alleged espionage but convicted only of a single minor count of mishandling classified data. Their demands got nowhere, forcing their employers to reach a costly settlement with Lee.

The news media keep losing these cases, yet journalists and their attorneys refuse to recognize reality. They continue to insist on their right to keep evidence of wrongdoing and lawbreaking from the courts, no matter what the collateral damage.

Locy reported on the suspicions about Hatfill based on interviews with confidential sources in the Justice Department and the FBI, who may have violated federal law in leaking information about him. Since she discarded her notes and says she can't remember which of 10 people told her about Hatfill, the judge says she has to turn over the names of all 10 so Hatfill's lawyers can question them.

Judge Walton found that the identity of her sources "goes to the heart" of his case, and that there is no other way he can get the information. Without Locy's testimony, the damage done to Hatfill would go unpunished and unrepaired.

The Reporters Committee for Freedom of the Press and its allies also think the $5,000-a-day fine, which the judge says she must pay herself, is outrageously excessive. But the point of such fines is not to accommodate the financial resources of the person who is defying the law—it's to force her to comply, in the interests of justice.

Justice should not be at odds with the job of the news media. But in this instance, it is. University of Chicago law professor Geoffrey Stone, one of the premier experts on the First Amendment, thinks the press has overstepped. "It's important to remember here," he told me, "that these sources were not blowing the whistle on government wrongdoing but were allegedly doing something wrong in revealing the information about the identity of the suspect."

Journalists and citizens may disagree on the proper role of the news media in a free society. But when the press finds itself protecting the guilty at the expense of the innocent, it's made a wrong turn somewhere.

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ed|3.27.08 @ 8:10AM|#

One might offer an analogy by editing Chapman's closing lines:

Priests and citizens may disagree on the proper role of religion in a free society. But when the priesthood finds itself protecting the guilty at the expense of the innocent,
it's made a wrong turn somewhere.

Some journalists consider their profession a holy mission, infallible, above suspicion,
and deserving of special privileges.

Elemenope|3.27.08 @ 8:13AM|#

Some journalists consider their profession a holy mission, infallible, above suspicion,
and deserving of special privileges.

Oddly enough, so do priests. Both are wrong.

But what I wanna know is|3.27.08 @ 8:13AM|#

Why he done it?

Jennifer|3.27.08 @ 8:24AM|#

If I were the journalist in question I'd name my sources in this case. To paraphrase the theme of the article, the whole idea of "protecting sources" is to protect whistle-blowers and exposers of malfeasance, NOT to give the government a free pass to use the press to slander people in a hands-off sort of way.

Furthermore, if I were the journalist I'd be pissed off on a personal level at the guy who told me Hatfill was guilty -- who the hell do you think you are, using me to destroy an innocent man?

But then, I don't buy into the idea that the only way to be a proper journalist is to kiss the government's ass so they'll return your calls and let you scoop the competition on bullshit "our leaders are grand" press releases.

Wicks Cherrycoke|3.27.08 @ 8:37AM|#

I have never understood this notion that journalists should be exempt from the obligation, common to every American citizen, to come forward with relevant evidence that they have regarding matters in the courts. Freedom of the press is vital to a free society, but so is the rule of law. And freedom of the press is a right all of us possess; it is not a grant of special privileges to those who deem themselves "journalists."

|3.27.08 @ 8:38AM|#

You're in the minority as far as that goes. My local paper seems to report uncritically anything that city officials and police say. Actually, they all such statements as facts, and fix their stories accordingly.

Mad Max|3.27.08 @ 8:40AM|#

"Priests and citizens may disagree on the proper role of religion in a free society. But when the priesthood finds itself protecting the guilty at the expense of the innocent,
it's made a wrong turn somewhere."

There is only one thing wrong with that anology - it is stupid.

Priests are forbidden to reveal the secrets of the confessional by sharing any details of the confession with the public. If the journalists in the Hatfill case had followed this rule, there would have been no problem.

In contrast, the journalist in this case publicized the statementsof the government official(s) harassing Hatfield. Then, belatedly, the reporter clammed up, proclaiming that, while the *contents* of the government officials's false statements are worth disclosing the the public, the identity of the person making the statement is a Big Secret.

|3.27.08 @ 8:48AM|#

Max,

I think ed's point in applying the clergy analogy was the Church's handling of the sexual abuse scandal of years past. Rather than investigate, expose and defrock the guilty parties, the Church had them reassigned. The clergy protected its own, potentially at the expense of future victims.

Dave W.|3.27.08 @ 8:49AM|#

Hatfill, reporter privilege, blah, blah, blah.

Moving now to the much more important issue of who did do the Antrax Attacks of 2001, let's hear a word form Patrick Leahy, the addressee of one of the terrorists' letters:

"I think there are people within our government - certainly from the source of it - who know where it came from."

(2007 interview with the Vermont Daily briefing)

Jennifer|3.27.08 @ 8:52AM|#

Yes, David, but your local paper sucks the balls of Satan. I think it actually read that on the masthead once: "Sucking Satan's balls since 18-whatever."

Taktix®|3.27.08 @ 9:04AM|#

|3.27.08 @ 9:05AM|#

Boo hoo. He was a suspect, and the press reported he was a suspect. He was cleared, and the press reported he was cleared.

JCoke|3.27.08 @ 9:09AM|#

I haven't followed the sex scandal too closely, but I am pretty sure that the Church was not protected by any privilege such as the seal of confession, it was just that there was something bad going on and the leadership did their best to cover it up/

Mad Max|3.27.08 @ 9:14AM|#

JA,

The confessional thing has often been a point of criticism of the Church.

If ed meant top reference the sex-predator scandals, it is certainly outrageous that the American bishops protected these predators for so long, although I think this was based more on Watergate-style coverup impulses than on a belief in the holiness of priests. New reforms are more in tune with the holiness of the priesthood by calling for the purging from the priesthood of such unworthy members. The public schools ought to follow the Church's example in dealing with this problem, see

http://deseretnews.com/dn/view/1,1249,695220529,00.html

On the plus side, the scandals got the secular media at least pretending that they were shocked and outraged at the idea of adult men having sex with teenagers. This delays the implementation of that particular phase of the sexual liberation movement.

Fluffy|3.27.08 @ 9:16AM|#

Boo hoo. He was a suspect, and the press reported he was a suspect. He was cleared, and the press reported he was cleared.

This would also apply to the source of the leak:

Boo hoo. So you are revealed to be the source of the leak. So what? If it's reported in the press accurately, what is your complaint?

I'm not saying that is my position on this matter, I'm just putting that out there because Daze seems to think that the target of the leak shouldn't have any complaint to make since he was eventually cleared. That would seem to mean that the maker of the leak shouldn't have any complaint to make, either, if their identity is revealed, as long as the information is accurate. But something tells me they would.

If the target of the leak just needs to "buck up", why shouldn't the leaker?

Jennifer|3.27.08 @ 9:18AM|#

Boo hoo. He was a suspect, and the press reported he was a suspect.

No, the press reported "secret information" suggesting he was the criminal, not merely a suspect. And the "secret information" they reported turned out to be entirely false, and why the hell anyone would be fool enough to protect a liar who used her to smear an innocent man is beyond me. Does she also have a husband who, she insists, "only beats me up when I deserve it?"

|3.27.08 @ 9:20AM|#

There is the question of protecting a privilege in general. Without priest-penitent, attorney-client, doctor-patient, etc. privileges, the belief is that people would not speak as freely as they should. What's different for journalists is that it's not so much a matter of public policy to protect sources as it is good business. If you toss a guy under the bus this week, then the next guy may not talk. Naturally, the importance of the matter at hand has some bearing on the under-bus-tossing decision.

Episiarch|3.27.08 @ 9:31AM|#

If you toss a guy under the bus this week, then the next guy may not talk.

If you only toss guys under the bus who give you totally wrong information that fucks up someone's life, that sends a message of "don't leak shitty info to me."

Any journalist who wants to be known as the person who protects sources, even if those sources give false information, is a journalist who wants splashy headlines, not truth.

Ruining someone's life is despicable. Doing so for headlines to advance your career is worse. What is different between these journalists and say, Nifong?

|3.27.08 @ 9:39AM|#

Episiarch,

I was just speaking generally. If a journalist is lied to, especially by someone in government or otherwise highly placed, then I don't see any reason to protect the source. Of course, it's a little-known fact that Deep Throat lied to Woodward and Bernstein. He was not, in fact, a porn star.

Mad Max|3.27.08 @ 9:50AM|#

The question of confidential government sources should be considered as a branch of whistleblower-protection law, not as a branch of journalistic privilege.

The courts should usually not require anyone, journalist or not, to reveal the identity of a whistleblower. The risk of illegal retaliation is so high that whistleblowers ought to have some assurance of confidentiality.

However, this presumes that we're dealing with a bona fide whistleblower - a government employee who provides the public with *true* information about government wrongdoing. Someone who provides *false* information should be automatically denied whistleblower status.

The case referenced in this thread is not a case of whistleblowing. The only blowing taking place is by the journalist of his corrupt source.

kinnath|3.27.08 @ 9:51AM|#

I might be willing to let this journalist keep her source a secret so long as she assumes the liability on behalf of that source. If she wants to pay the civil fines and serve the prison term on behalf of a source that lied to her, then so be it.

Mad Max|3.27.08 @ 9:51AM|#

In addition, the whistleblower's information should pertain to misconduct by the government, not by a private citizen who is the target of the government.

|3.27.08 @ 9:55AM|#

I'm just putting that out there because Daze seems to think that the target of the leak shouldn't have any complaint to make since he was eventually cleared.

My point is also that Hatfield has used overly aggressive legal threats to attack legitimate reporting about the anthrax investigation. He was a prime suspect, there was plenty of solid evidence pointing to him as a suspect, and the press had every right to report that.

|3.27.08 @ 10:05AM|#

|3.27.08 @ 10:10AM|#

Pissed at your neighbor? Work for the government? Slandering him to a reporter would be a wonderful way to carry out a vendetta if there were no repurcussions for the reporter who publishes the slander and then refuses to reveal where the misinformation (slander) came from.

This reporter is a witness to a crime. Crime witness are often cited for contempt for refusing to testify. Why should reporters be privileged in that regard?

Jennifer|3.27.08 @ 10:29AM|#

Under Hatfill and Chapman's logic, the FBI shouldn't investigate the anthrax attacks too closely, and the press shouldn't report on the investigation, because they might end up "ruining someone's reputation" if the suspect is not ultimately convicted.

False dichotomy. The FBI is perfectly capable of investigating an attack and telling a journalist "we have someone under suspicion, but cannot release his name yet."

|3.27.08 @ 10:32AM|#

""I might be willing to let this journalist keep her source a secret so long as she assumes the liability on behalf of that source. If she wants to pay the civil fines and serve the prison term on behalf of a source that lied to her, then so be it."""

I agree.

Lord Jubjub|3.27.08 @ 10:33AM|#

The problem with the leak of of Hatfield's name is the same as the leak of Richard Jewell's name. The reporter used that name specifically to say that the FBI not only considered him a suspect, but was building a case against him.

I see no particular benefit to an FBI investigation to leak the name of a suspect unless it is to gather information from people who might come forward. Reporters publishing suspect lists are much likely to hurt an investigation rather than to help it.

Fluffy|3.27.08 @ 10:36AM|#

However, this presumes that we're dealing with a bona fide whistleblower - a government employee who provides the public with *true* information about government wrongdoing. Someone who provides *false* information should be automatically denied whistleblower status.

The problem with this is that if you're protecting whistleblowers of accurate information from retaliation, then they don't actually need confidentiality. And it may be impossible for a plaintiff to demonstrate that the information provided is false if they can't establish who the whistleblower is. So as a practical matter extensions of confidentiality will end up covering providers of false information too.

I think that the apparent conflict / problem between rights here is due to the existence of bad laws, specifically in the area of government secrecy. We have granted far too much power to the state to declare things secret and to punish people who reveal those secrets. Defenders of source confidentiality are worried that if they don't establish this principle, government sources wouldn't be able to reveal evidence of wrongdoing that's been declared secret without, as J sub D puts it, committing a crime, and making the reporter a witness to a crime. This situation becomes less likely if we limit or eliminate the state's capacity to declare revealing a secret to be a crime for non-military persons. That way, you don't have to be worried about grand jury fishing expeditions because there's no "national security" crime to investigate or for the reporter to have "witnessed".

|3.27.08 @ 10:49AM|#

these sources were not blowing the whistle on government wrongdoing but were allegedly doing something wrong in revealing the information about the identity of the suspect.

Why would the "source" put Hatfill's name out there? Did he see a bunch of stupid old black and white cop movies, and think he would smoke Hatfill out? Make him head for the airport with a satchel full of gold, and the plans for the secret moon base?

As has already been pointed out, a federal investigation can legitimately be conducted in secret, until sufficient evidence has been acquired to justify a charge. Reporters looking for dramatic headlines do not add anything of value to the process.

And put me down in the camp of, "If this is such an important principle for her, then let her pay the five grand per day in perpetuity." If it's worth it, to her, I'm okay with it. But I'm tired of people who claim they are acting out of virtuous motives and unshakeable moral belief who also want to be immune from the consequences of their actions.

Tell me again: where did Martin Luther King write the "Letter from the Birmingham Jail?" (I think I remembered that correctly)

Dave W.|3.27.08 @ 10:51AM|#

Under Hatfill and Chapman's logic, the FBI shouldn't investigate the anthrax attacks too closely, and the press shouldn't report on the investigation, because they might end up "ruining someone's reputation" if the suspect is not ultimately convicted.

I think Daze nails it here. I think the government wanted to protect the people who sent the anthrax. So, they gave some misinformation to the press and watched the chaos ensue. Put the press in their place. The press got the message that the perpetrators of terrorist attacks will be investigated and reported, if at all, by the government itself.

Really, "Lil Stevie" Chapman is just reinforcing that message, yet again, with his lousy article.

When people talk about "conspiracy theorists" all they want to do is talk about holograms and melted steel. I think they do this to avoid thinking about the conspiracy theories that are true.

Also: I may be on the TODAY show next Wednesday. Set yer TIVO's!

|3.27.08 @ 11:44AM|#

I set my TIVO to stun.

|3.27.08 @ 11:49AM|#

I think the government wanted to protect the people who sent the anthrax. So, they gave some misinformation to the press and watched the chaos ensue.

Are you serious?

Dave W.|3.27.08 @ 11:53AM|#

Me: I think the government wanted to protect the people who sent the anthrax. So, they gave some misinformation to the press and watched the chaos ensue.

Jay-Sub-Dee: Are you serious?

Me: Definitely. I can't know for sure, but I would bet a lot of money on it if: (i) that were legal; and (ii) there was a reliable way of settling the bet.

Dave W.|3.27.08 @ 11:55AM|#

Keep in mind that the letters said "DEATH TO ISRAEL" (caps in original).

Episiarch|3.27.08 @ 11:58AM|#

Dave, if you are going to be on the Today Show, please, please, please give us the exact date and time.

I really, really want to see this.

Dave W.|3.27.08 @ 12:09PM|#

Next Wednesday is all I know. I am not even sure I get to talk because the segment is about my wife, not me.

Mike M.|3.27.08 @ 12:32PM|#

"I think there are people within our government - certainly from the source of it - who know where it came from."

If Leahy really believes that, then why isn't he working a heck of a lot harder than he is to use his considerable power to force the government to provide information on the status of the investigation?

After all, he has virtually unlimited subpoena power and the feds have openly refused to provide any further status reports, but best as I can tell he has yet to issue even one subpoena on this subject.

Dave W.|3.27.08 @ 12:49PM|#

If Leahy really believes that, then why isn't he working a heck of a lot harder than he is to use his considerable power to force the government to provide information on the status of the investigation?

Has Dick Cheney ever thrown the eff bomb at you? So, there's that.

More to the point, people like Chapman (just one example)write articles so people like J Sub D (just one example) think that the government is really trying to find out who sent the anthrax. Leahy probably doesn't think he would have popular support and wants to save his political capital for causes less hopeless.

Of course, then there is the fact that Leahy is working against people who have shown a willingness to see him dead. Maybe he likes living.

Mike M.|3.27.08 @ 12:59PM|#

Sounds a lot more paranoid than plausible to me.

|3.27.08 @ 1:31PM|#

Plausible paranoiability.

|3.27.08 @ 1:32PM|#

Dave, have fun on TV. Don't make your wife look bad. Or too good, either.

Dave W.|3.27.08 @ 1:43PM|#

Sounds a lot more paranoid than plausible to me.

Cheney's staff took CIPRO, the "antidote" to anthrax, on 9/11, which is before any of the anthrax letters were received.

How paranoid is that?

Mike M.|3.27.08 @ 2:05PM|#

How paranoid is that?

Pretty paranoid in my opinion. All kinds of special precautions were taken on 9/11, including taking the President and Vice President off to secret undisclosed locations, which would happen regardless of who is in office.

If the evil Dick Cheney was somehow involved in an anthrax attack he knew ahead of time was coming, he wouldn't take the antiobiotic Cipro, he would receive the anthrax vaccination series that everyone in the miltary gets, and that I myself have received.

I guess if I were of a paranoid bent, I could understand why sinister members of the government would want to try and take out Leahy, Daschle, and some members of the mainstream press. But I certainly can't figure out why in the world they would want to target the headquarters of American Media Inc. in Boca Raton, Florida.

Dave W.|3.27.08 @ 2:12PM|#

If the evil Dick Cheney was somehow involved in an anthrax attack he knew ahead of time was coming, he wouldn't take the antiobiotic Cipro, he would receive the anthrax vaccination series that everyone in the miltary gets, and that I myself have received.

I guess if I were of a paranoid bent, I could understand why sinister members of the government would want to try and take out Leahy, Daschle, and some members of the mainstream press. But I certainly can't figure out why in the world they would want to target the headquarters of American Media Inc. in Boca Raton, Florida.

Now you are getting it. So you say CIPRO is for people who have already been exposed to deadly anthrax? What does that mean, given the facts that: (i) the anthrax letters were sent on 9/11/01; and (ii) this was the same day that Cheney's staff took the CIPRO?

See also, eg:

http://www.globemagazine.com/story/17

Mike M.|3.27.08 @ 2:28PM|#

I think it's been established that virtually all the anthrax letters were sent AFTER 9/11, and not on 9/11, though the Boca Raton letter was never recovered, so we don't know for sure when that one was sent.

In fact, the Leahy and Daschle letters clearly had to have been sent weeks after 9/11, as they were both postmarked October 9.

|3.27.08 @ 2:29PM|#

Reporters should retain the right to refuse to identify sources. But anybody damaged by the false testimony of an anonymous source should have the right to kill the responsible reporter without penalty.

|3.27.08 @ 2:32PM|#

Knowing Leahy, he probably sent the letter to himself.

|3.27.08 @ 2:49PM|#

I think Daze nails it here.

Thanks, but ...

I think the government wanted to protect the people who sent the anthrax. So, they gave some misinformation to the press and watched the chaos ensue.

This is nuts. They investigated Hatfill because a lot of evidence pointed to him and they thought he might be the culprit.

Dave W.|3.27.08 @ 3:11PM|#

I think it's been established that virtually all the anthrax letters were sent AFTER 9/11, and not on 9/11, though the Boca Raton letter was never recovered, so we don't know for sure when that one was sent.

Well, that is well and good. The earliest letters were dated 9/11/01 and postmarked 9/18/01. But the point remains: if you were preparing anthrax letters to be sent out in a week from now, on what date would you start taking your CIPRO?

Another Phil|3.27.08 @ 5:49PM|#

Dave,

You seem to be saying that Dick Cheney handled the anthrax spores personally. I find that implausible. He's powerful enough to be able to find others to do that sort of dirty work.

Dave W.|3.27.08 @ 6:00PM|#

You seem to be saying that Dick Cheney handled the anthrax spores personally. I find that implausible. He's powerful enough to be able to find others to do that sort of dirty work.

The news story was that his staff took CIPRO, rather than him personally.

This is not conclusive proof that Cheney's staff made that first round of letters, but it is stronger circumstantial evidence than anything they had on Hatfill. By a lot. (Sorry Daze, but its true).

|3.27.08 @ 11:11PM|#

uh, the Scooter Libby reference doesn't exactly add to the writer's credibility. Scooter wasn't even the one who revealed Wilson's wife's identity, it was Armitage.

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