The so-called mainstream media are unreliable defenders of press freedom. A case in point: the Los Angeles Times in July published an op-ed piece with the astonishing title "Tabloids Don't Deserve the 1st Amendment." The news peg was the phone-hacking scandal at the now-defunct British paper News of the World (owned by News Corp., as is my employer, the Wall Street Journal). But Britain doesn't have the First Amendment, and author Jeffrey Shapiro's target was American supermarket tabloids. Years ago he worked for one of them, the Globe.
At the end of his piece, Shapiro made clear he had been attacking a straw man all along. "Crime is crime," he concluded. "Tabloid journalism uses illegal tactics, and it does not deserve absolute protection from the 1st Amendment." Yet in describing his own experience, Shapiro had already made clear that the First Amendment does not provide tabloids with "absolute protection," only the same degree of protection it extends to everybody else:
In 1999, while covering the JonBenet Ramsey murder case in Boulder, Colo., I reported my tabloid editors to the FBI for the attempted extortion of a police detective. My editors had threatened to publish a negative story about his family if he did not illegally leak sealed grand jury evidence. One of my editors also offered tens of thousands of dollars to an expert hired by defense lawyers for a copy of the coveted ransom note.
After I testified before a Colorado grand jury, and felony indictments were handed down [sic] to a Globe editor and a consultant, the tabloid challenged the case on 1st Amendment grounds before the Colorado Supreme Court and lost.
After that ruling, however, prosecutors did not pursue the case as vigorously as Shapiro would have liked:
Agents for the Colorado Bureau of Investigation told me that the local district attorney was concerned about being criticized for prosecuting a media organization. The charges were dropped for a mere $100,000 contribution to a journalism program and an admission from the tabloid that it had acted unethically.
So the case was settled because prosecutors exercised their discretion to accept a plea deal--something that happens all the time in all sorts of criminal cases. The claim that "the local district attorney was concerned about being criticized for prosecuting a media organization" is a dubious one, coming as it does from the cops who investigated the case--sources who would have every reason to share Shapiro's sense of grievance at the anticlimactic outcome.
In any case, even if one agrees with Shapiro that the prosecutors' decision to drop the charges was unjust, that choice was not dictated by the First Amendment. Although concern for press freedom often counsels caution about investigating and prosecuting journalists, the First Amendment is not a license to violate criminal laws, as the Colorado Supreme Court recognized in the Globe case.
Shapiro writes that "without illegal conduct, tabloids could not preempt the mainstream press, and they would not survive." But the mainstream press has been known to engage in illegal conduct as well. In All the President's Men, Bob Woodward and Carl Bernstein described how Bernstein used the 1970s equivalent of phone hacking to dig up information about the 1972 Watergate burglary for the Washington Post:
Bernstein had several sources in the Bell system [the landline telephone monopoly]. He was always reluctant to use them to get information about calls because of the ethical questions involved in breaching the confidentiality of a person's telephone records. It was a problem he had never resolved in his mind. Why, as a reporter, was he entitled to have access to personal and financial records when such disclosure would outrage him if he were subjected to a similar inquiry by investigators?
Without dwelling on his problem, Bernstein called a telephone company source and asked for a list of [Watergate burglar Bernard] Barker's calls. That afternoon, his contact called back and confirmed that the calls listed in the [New York] Times had been made. But, he added, he could not get a fuller listing because Barker's phone records had been subpoenaed by the Miami district attorney.
Bernstein was never investigated, much less prosecuted, for this, although he and Woodward were threatened with jail for attempting to violate grand jury confidentiality. To be sure, there's a strong argument that the ends justified the means in the Post case but not the Globe case. A political scandal that brought down a president is a matter of much greater public importance than a sensational murder case. But it does not follow that the "mainstream press" is entitled to greater constitutional liberty than tabloids are.
What's more, supermarket tabloids have been known to break important political stories that the mainstream press shied away from--and in this regard, the Los Angeles Times has an especially embarrassing record. In 2008 blogger Mickey Kaus published an e-mail from Tony Pierce, an editor at the L.A. Times, to the paper's online contributors (quoting verbatim):
There has been a little buzz surrounding John Edwards and his alleged affair. Because the only source has been the National Enquirer we have decided not to cover the rumors or salacious speculations. So I am asking you all not to blog about this topic until further notified.
If you have any questions or are ever in need of story ideas that would best fit your blog, please don't hesitate to ask
Two weeks later, Edwards partially confessed, and Times columnist Tim Rutten weighed in:
When John Edwards admitted Friday that he lied about his affair with filmmaker Rielle Hunter, a former employee of his campaign, he may have ended his public life but he certainly ratified an end to the era in which traditional media set the agenda for national political journalism.
Rutten acknowledged that "too many newsrooms, including that of The Times," were derelict in ignoring the Edwards story. But his column reflected a telling defeatism. By proclaiming the "end to the era" of traditional media, he seemed to be suggesting that those media, including his own paper, were incapable of applying any lessons from the experience of being scooped by the Enquirer--that they were too hidebound to do anything other than "keep rockin."
If that's true, one might as well ask if the Los Angeles Times deserves the First Amendment. It's a silly question, of course--precisely as silly as Shapiro's op-ed. Fundamental constitutional liberties are not rewards for good behavior or privileges reserved to certain classes of individuals or organizations. They belong to everyone as a matter of right.
The Bill of Rights protects a variety of rights enjoyed specifically by those who are suspected, accused, or convicted of crimes: the rights to due process, speedy, and public trial, confrontation and compulsion of witnesses, and assistance of counsel; and against unreasonable search and seizure, double jeopardy, involuntary self-incrimination, excessive bail and fines, and cruel and unusual punishment.
Would the Los Angeles Times's editors publish an op-ed titled "Criminals Don't Deserve the 4th, 5th, 6th and 8th Amendments"? They would have to be awfully ignorant to do so--but then again, only as ignorant as they have already demonstrated themselves to be.
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