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What stopgaps can news sources install to keep themselves credible? Discuss the self-policing of the media in Table Talk R E C E N T L Y
If elected, I promise more girlie shows at the state fair! The autocrat of the coffee table Befriend and betray Lugging the guts into the next room Chekhov, Marx and synergy BROWSE THE |
Steal this leak! IN A RARE FIRST AMENDMENT VICTORY FOR THE PRESS, A D.C. COURT SAYS REPORTERS CAN USE PURLOINED INFORMATION.
BY CYNTHIA COTTS Hardly anyone noticed, but the media scored a major First Amendment victory on July 28, when a federal judge in Washington, D.C., handed down a decision that suggests reporters can use stolen material so long as they didn't do any stealing themselves. The decision, by Judge Thomas Hogan, threw out a lawsuit Rep. John Boehner, R-Ohio, filed against Rep. James McDermott, D-Wash. Boehner accused McDermott of breaking the wiretap law when he gave the New York Times the transcript of a taped phone call in which Boehner and other Republicans plotted how to respond to ethics charges against Newt Gingrich. But since the call was actually intercepted by a Florida couple, not by the congressman, the judge said McDermott couldn't be punished. In a year when reporters are under attack for just about everything, including their news-gathering methods, this is a rare bit of good news for the Fourth Estate. Judge Hogan's decision may throw light on murky areas of libel law and help answer a tricky question: What happens when a reporter does break the law or is somehow in cahoots with someone who does? The question of the reporter's complicity in illegal activity arises in several cases pending against journalists. An Ohio grand jury is currently investigating allegations that reporter Mike Gallagher illegally broke into Chiquita Brands International's phone system to gain material for his exposé on the company's business practices. In Wilmington, N.C., reporter Kirsten Mitchell was fined and held in contempt of court after she published details of a secret settlement between Conoco Oil and the residents of a polluted trailer park; Mitchell obtained the confidential info after a court clerk inadvertently handed her a sealed file. And a federal appeals court is deciding whether ABC must pay millions of dollars to the Food Lion supermarket chain after network employees illegally went undercover to report on unsanitary food-handling practices. One thing all these cases have in common is that they are civil torts. The Boehner lawsuit against McDermott was also a tort, and that's no coincidence. These days, when corporate America gets mad at journalists, it no longer bothers with libel, because libel is clearly defined and can be defended by the First Amendment; truth, after all, is an absolute defense to libel. It's less clear whether the First Amendment protects journalists who tell the truth but are accused of crimes such as trespassing and fraud in connection with their reporting. Pity Mike Gallagher, whose reporting has not been questioned. Even if the grand juries don't indict him on criminal charges, he still has to answer a civil action filed in July by Chiquita, in which he is charged with trespassing, fraud, wiretap violations and inducing company employees to break contractual duties and disclose privileged information. Talk about a trash tort! Gallagher's best defense is to claim that he was merely the receiver of voice-mail passwords and/or messages, obtained for him by Chiquita insiders. Arguably that would put him in the same position as McDermott, who got the taped conversation about Gingrich from a couple with a police scanner. But the McDermott decision will be of little help if Chiquita can prove Gallagher actively solicited leaks from insiders or personally broke laws to get them. The McDermott decision will almost certainly strengthen Kirsten Mitchell's appeal. After all, it was the court clerk who violated a court-imposed seal by giving her the settlement papers. Mitchell, like McDermott, simply received the information inside. The Food Lion case is also on appeal, and while McDermott's victory may not directly affect that case, it helps remind the public that the First Amendment can be invoked as a defense against criminal and civil penalties. In many cases, going all the way back to the Pentagon Papers, judges have ruled that it's more important for the public to know the truth than it is for reporters to obey all the laws. Where does that leave journalists who are jonesing for leaks? The best rule of thumb is to stay at "arm's length" from any illegal act of obtaining the information, says Paul McMasters of the Freedom Forum, a foundation devoted to free speech. Instead of directly asking the source for a leak, he cautions, "The reporter needs to be careful. Don't say, 'Could you get me the file?' Say, 'If you have anything on it, it would sure be helpful to me.' That way you would avoid being complicit in any illegal act." If, as a reporter, you ever have to defend yourself against a trash tort, experts say, the ignorance defense may come in handy -- provided you are truly ignorant. The reporter's dream scenario is to come back from lunch and find a brown paper envelope on his or her desk. As long as the stuff is authentic, the journalist can use it -- even if someone committed murder to get it. When your editors ask where the leak came from, just say the magic words: "I don't know." One caveat: Make sure you're telling the truth.
Cynthia Cotts is a staff reporter for the National Law Journal. Rotten banana While the media race to condemn the Cincinnati Enquirer reporter who broke
into Chiquita's voice mail, they're forgetting who the real villain is.
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