By Gene Policinski
First Amendment Center
Judges judge. Prosecutors prosecute. And journalists, well, they do what journalists should do – get the news and report it, good and bad.
Except for falling just short of a triple hit of alliteration, it's quite an elegant arrangement – with a bit of constitutional and First Amendment symmetry for good measure.
But consider the raft of instances lately in which judges or prosecutors have decided to step into newsrooms in one manner or another in pursuit of notes, interviews, videotapes or telephone conversations, or have attempted to prevent publication or broadcast of information to readers and viewers.
According to Associated Press reports, in just the past few weeks:
– In Missouri, a state judge ordered two newspapers not to publish material they had received about public utilities and air pollution, but the order was lifted after a state appeals court stepped in.
– In California, federal officials investigating steroid use by famous athletes discontinued efforts to force two San Francisco reporters to disclose their sources, after a lawyer pleaded guilty to being the source. But a freelance videographer, Joshua Wolf, remains in jail in San Francisco for refusing to turn over to a grand jury his videotape of a protest event.
– In Kansas, a newspaper and television station were ordered to turn over reporters' notes taken during interviews with a man who faces a capital murder charge in the death of a 14-year-old girl.
– In Tennessee, a federal judge is considering whether to enforce a 1974 agreement that would close arrest information to reporters unless and until there's a conviction based on the arrest.
– In Florida, a state judge reversed his original order that Orlando's WKMG-TV could not air investigative reports about a political consultant based on 84 boxes of documents it obtained at an auction.
– In Massachusetts, a judge ruled that the news media could not reproduce the particularly graphic photos and videos from a murder trial that ended last year.
– In Texas, a state judge resisted a request by prosecutors for an order telling Houston's KPRC-TV to turn over unaired footage of some interviews. An assistant district attorney had told the court the prosecution subpoenaed the video to help with investigations and possibly trial preparations.
Clearly, this is more than a tempest in an inkpot. Somewhere, somehow, for some reason a long-standing ethic that the news media are not just another investigative tool for police, nor subject to "editors of the court," has broken down.
Did somebody delete the "Pentagon Papers" decision by the U.S. Supreme Court from lawbooks and judicial history? In that famous case, in 1971, the Nixon administration tried to prevent The New York Times – and ultimately a number of other newspapers – from printing what they knew about a top-secret report detailing how the nation became snared in the Vietnam War.
Then-Attorney General John Mitchell's Justice Department argued that national security would be injured by disclosure of the information, contained in papers leaked to the press by a disaffected Pentagon analyst, Daniel Ellsberg.
In a ringing decision, the high court held that although newspapers remained responsible for the consequences of what they publish, not even the president could stop them from printing it. But as we approach the 36th anniversary of that historic opinion, it seems that the simple yet so-important principle of that ruling has been lost in a muddle of motions, maneuvers and myopia about what the Founding Fathers intended when they provided for a free and independent press.
Consider the police manpower and the depth of the public purse behind every government investigation. Consider the power of the courts to subpoena witnesses, compel testimony and – with powers reserved for few in our land – to determine matters involving the life, property and liberty of fellow citizens.
Given all of that, does a prosecutor really need to prepare for trial by reading the scribbled notes of a reporter, or to scan the unaired videotape of a local TV station or freelance cameraman to determine who marched where, when?
The public needs an unfiltered, unbeholden and uninvolved view of how the courts and the criminal-justice system work, to help honest judges and public servants root out those who aren't. The public needs an independent observer as a check and balance – and sometimes a watchdog with bite – on misplaced zealots and those more in pursuit of personal gain than public benefit.
Ironically, the courts and the press have much in common. Though they are not allies in the usual sense, they depend on each other and share at least one goal. Both have an interest in letting citizens see the work of the courts accurately, openly and fairly.
There's no better friend, over time, to an independent judiciary than a free press that understands the need to stand apart from the process of government, the better to see and take the measure of it. Taking the courtroom into the newsroom won't improve that view.