Monday, June 26, 2006

Prosecute This!

Journalists Need to Push Back against Prosecutors

By Chris Daly

For some reason, federal prosecutors seem to have decided that it’s open season on journalists.
Last year, reporters for The New York Times, TIME and NBC-News were threatened with jail or actually jailed for refusing to play ball with prosecutors investigating leaks. In the latest assault, two reporters for the San Francisco Chronicle are on the hot seat, thanks to a federal prosecutor who wants to know how they found out so much about Barry Bonds.
This new case does not involve any great state secrets or matters of national survival. All that’s at stake is how much of what kind of steroid Bonds may have swallowed or rubbed on his skin or injected into his butt. What could possibly justify hauling those reporters – whose work, by the way, was both accurate and useful in the pursuit of the greater social good of cleaning up baseball – into court and threatening them with jail?
Yes, I grant that there is a Serious Issue at the core of the Bonds case, too – the sanctity of the grand jury process. But, come on. (If the grand jury is so sacrosanct, why don’t prosecutors and judges improve their own performance in keeping them secret rather than punishing what amounts to a symptom rather than a cause?)
There was a time when all this would have been unthinkable. No one would have launched these prosecutions of the news business back in the day when newspapers were prosperous and feisty, when they were run by tough-minded moguls who didn’t have to answer to anyone. Then, the conventional wisdom was, Never pick a fight with anyone who buys ink by the barrel. Now, these prosecutors are picking fights with people who not only buy ink but also satellites, Web servers and all the rest. The prosecutors must think they can get away with it.
These are frankly political prosecutions and should not be tolerated. They are political in two senses. On the one hand, they are obviously partisan. Think for a second: Why is it that these cases never arise during Democratic administrations? Why is it only Republicans who attack the media? Could it be that the professional incentives for U.S. Attorneys working in a Republican Justice Department favor such attacks? Could it be that Republicans really do hate the news media?
They are also political in another sense. If politics is defined as the struggle over power, these prosecutions represent an attempt by one institution to assert power against an institution that is perceived as losing power. Prosecutors (and their bosses) can read the circulation figures. They want to kick journalists while they’re down.

When challenged, of course, prosecutors say what they always say, “We are just following the dictates of the law.”
But it is naïve in the extreme to think that all these prosecutors suddenly and spontaneously came to the same conclusion. Are we really supposed to believe that prosecutors consult only their law books, suffused in the glow of the law’s majesty and guided only by the dictates of sweet reason and cold logic?
Gee, it would be swell if things worked that way. But they don’t. When a whole lot of people spanning a continent all decide at more or less the same time that it would be a good idea (and a career-builder) to put a bunch of reporters in the slammer, that’s not a coincidence. That’s an emergency.
It’s time for the media to push back. Here are some suggestions:
--INVESTIGATE: Open a spotlight probe of every U.S. Attorney, the entire staff, and the operations of the office. Do they come to work on time? Do they wash their hands before returning to work? Is anybody in the office unhappy enough to want to talk to a reporter? How is their affirmative action program going? Who fixes their parking tickets? Nobody likes being investigated, even when they’re exonerated. Prosecutors should know that.
--OUT THEM. They started this fight, so there’s no reason to behave any better than they do. Now is the time to reveal every leak from every prosecutor in the country. Where do reporters get info from? Reporters know. Why shouldn’t their readers know? If leaks are so bad, then certainly no prosecutor would ever engage in them… or would they? Hmm….
--KEEP ‘EM BUSY: The media should flood every U.S. attorney’s office with FOIA requests. Just keep them coming, until they call off their dogs. (“Isn’t this a fishing expedition?” “You bet it is! We’re fishing for justice.”)
--SUE THE BASTARDS: There must be some basis for suing these prosecutors for violating the civil rights of journalists. The Massachusetts Constitution, for example, provides this opening:
The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.

What lawyer couldn’t draft a civil rights complaint based on those two sentences alone?
Once the prosecutors start getting subpoeaned to show up in court – as defendants! – we’ll see how much they like their own tactics. Media lawyers can get them under oath and start asking them questions. As the prosecutors well know, you don’t always have to win a case to benefit from the proceedings.
Any takers?



--30--