Saturday, July 09, 2005

Miller And Cooper, Chickens Already Home

This is why Miller and Cooper fucking matter. The Cleveland Plain Dealer has quashed two major investigative stories of "profound importance" in light of the Miller jailing. The PD's corporate lawyers have concluded that the newspaper would certainly find itself in a Time magazine situation if the stories based on illegal leaks were published. From E&P

Lawyers for the Newhouse Newspapers-owned PD have concluded that the newspaper would almost certainly be found culpable if the leaks were investigated by authorities.

"They've said, this is a super, super high-risk endeavor, and you would, you know, you'd lose," Clifton said in an interview Friday afternoon.

"The reporters say, 'Well, we're willing to go to jail, and I'm willing to go to jail if it gets laid on me,'" Clifton added, "but the newspaper isn't willing to go to jail. That's what the lawyers have told us. So this is a Time Inc. sort of situation."
Now, Ohio has a shield law to protect journalists. Its Ohio Revised Code § 2739.12 and it states:

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.
Therefore, these two stories must be of a federal nature. What could it be? Iraq? Gitmo? Plame? Sadly, we just don’t know, yet. I have a feeling we will. Otherwise, why would Clifton mention this at all? Doesn’t he open himself up to obstruction of justice charges by doing so? Jeff, help me out here.

We now have to take a look at Clifton’s motives for speaking to E&P. Take note of Clifton saying “but the newspaper isn’t willing to go to jail.” Corporations don’t go to jail. They pay fines and being unwilling to pay the fines to tell important stories definitely contradicts this Columbia Journalism Review article about “The Newhouse Way” which is defined as “Freedom to shape a paper without measuring everything against the bottom line.” Newhouse claims to take a very hands off approach to its editors, I should note that the CJR article is pre-Patriot Act, so I don’t know if this is still the prevailing view.

While it is possible Newhouse told him to shut it down, Clifton may be just trying to gin up some publisity prior to taking a running leap off the cliff. I hope this is the case. If it isn’t, let’s hope the reporters covering these stories bring them to the blogosphere. Hell, I’ll do the time, I could use a vacation.


Jeff said...

The 6th District Court of Appeals in Ohio, held that in order for a radio station employee to enjoy protection under O.R.C. 2739.04 he/she must establish that they were (1) employed by a commecial radio station "for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news"; (2) that they procured or obtained "any information" from "a source"; and (3) they "procured or obtained" such information "in the course of [their] employment."

While this case dealt with a radio station journalist and not a newspaper journalist, I believe the intent of the court's interpretation to be the same.

Does Clifton's comments amount to obstruction of justice? No. But they are an unfortunate commentary on our current environment, where fear drives whether or not a potentially significant story is ran. I also posted a comment on my site (prior to readin yours), where I lament the effects of Clifton's decision not to run these stories.

Jeff said...

By the way, the law is less than settled on the applicability of O.R.C. 2739.12. The Court opined in In re April 7, 1999 Grand Jury Proceedings (2000), 140 Ohio App.3d 755, that "balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions." A balancing of these competing interests is necessary as reporters do not possess an absolute First Amendment right or an absolute statutory right to withhold or otherwise conceal the identity of confidential sources of information in light of ongoing criminal proceedings." (Citations omitted).

The entire scope of the decision goes far beyond the confines of this comment, but I post it merely to point out the balancing test employed by the court.