I have just got back from sitting in a discussion about how far should journalists go in chasing a story. It is a good question to ask and not as easy to answer as one might think. Is a journalist justified, for example, in breaking and entering a person’s property without consent to obtain facts even if the story is one of supposedly major importance? Can a journalist eavesdrop on confidential phone calls between X and Y in order to get a story and does that story have to pass some sort of “public interest” test? In my own hazy thoughts on the matter, I tend to take the view that the public interest test has to be very rigorous indeed, ie, life has to be at stake. It is not enough to say that “X is a famous man who is interesting to lots of people” sort of yardstick. It has to involve the exposure of murderous, criminal behaviour by the person(s) being investigated to justify breaking into a private home or breaching a confidential document.
Of course, as the discussion unfolded, it became pretty clear that the world of the internet and blogs, that a lot of media laws, as well as the whole idea of journalism being a licenced profession, is under threat. On the whole, I think this is a good thing. If journalists want to form their own trade associations to promote best practice and carry emblems on their news channels or newspapers saying that Mr J. Pearce is a member of the Journalist Society, well and good. It will be rather like plumbers, electricians or bricklayers forming such bodies, bodies that stand for reputation and high standards. Miscreants can and will be thrown out. Being a member of such a club will be a big deal, except that it will not be a state-approved body, but a genuinely private one.
Anyway, the weather is too glorious for me to write further. Time to light the barbecue and open some wine.
I take the view that if it is reasonable and justified for the cops to do it, it is justified for me to do it.
Stage two will be to insist that all print media only uses people with this badge to get a bigger badge. Then that all media has the bigger badge.
ISO9002, TQM, SEI all over again.
Conversation I had some time ago was on the theme of whether journalists should be privileged before the law. My position was, and remains, that where a journalistic professional obligation conflicts with the law a professional journalist should choose the obligation, but should have no more privilege before the law than anyone else. A journalist should do their job, and then be subject to the legal consequences.
Conversation I had some time ago was on the theme of whether journalists should be privileged before the law. My position was, and remains, that where a journalistic professional obligation conflicts with the law a professional journalist should choose the obligation, but should have no more privilege before the law than anyone else. A journalist should do their job, and then be subject to the legal consequences.
I had the gas man from hell.
He tried to shag my Doberman in the kitchen.
I took him to court but the judge threw the case out because the gas man was Corgi-qualified.
A journalist is never justified in breaking such rules to get a story. They might, in some circumstances, be justified in breaking rules to prevent a crime, loss of life, or arguably in the interests of justice.
Stories are a product for sale, like any other. How far can I go to obtain antiques or diamonds or artworks to sell? Can I break into someone’s house? Can I buy them cheap off someone I know has probably stolen them? If some magnificent artwork is kept locked in a private collector’s vault rather than being on show to the public for everyone to enjoy, can I take it off the collector and donate it to a public gallery in the name of art? Is it OK if the gallery that employs me makes a lot of money from the interested public as a result?
Journalists have this idea that they are somehow a part of the Establishment, like the judiciary and government; the fourth estate. They think they have a duty to universal openness and a right to know; authority to judge us and wisdom to govern us.
If so, then they should require appropriate qualifications, they should be subject to the checks and balances that other arms of government are, and they should face consequences when they get things wrong. Or they should be told that they aren’t. Whichever.
If it is justified for journalists to do it, then it is justified for the cops, or other civil servants to do it. 🙂
I think we’re over generalising rather here.
There are all sorts of journalists.
British journalists are quite different to American ones for instance.
All the British ones I know (and I know quite a few) have never been near a Journalism College, and would pay good money NOT to do so. Wheras all the American ones have. This tends to shape and narrow their thinking and application. The Brits just busk it!
Then there are the straight news reporters, the political specialists, the entertainment and arts writers, who all very rarely have to stoop to anything underhand to get a story. Generally speaking, all you have to do is shove a tape recorder in someones face , and they are happy to tell all.
I dont think the ones that I know regard themselves as part of the Establishment, Pa Annoyed.
Rather the opposite.
The same should apply to all state employees too. I knew a Met copper some years ago who worked in internal affairs and that was certainly his view (in fact he took the view that there should be less leeway, not more, if you wore blue. He believed in the ‘reasonable man’ standard (such as the amount of force needed to arrest some drunk and disorderly pisshead) and that some crimes were too petty to be worth the paperwork…but felt there was no such thing as a petty crime if a copper did it. He was fairly passionate about that).
Yes, there are a lot of journalists who don’t cheat to get stories. I assumed it was a given that we weren’t talking about them. For that matter, there are plenty of old-school journalists who take pride in their ethics.
There is more to journalistic ethics than the methods used to get the story, and the categories you mention cannot simply be assumed to be clean. But whether they’re ethical or not, the only thing that justifies cheating is to prevent something worse. It is never justified by the story.
One of the problems of having an Association of Journalists (or whatever) is soon, they will have political power and will use/abuse that power for all sorts of nefarious deeds. For example, they could try and shutdown newspapers that aren’t using AOJ members, get non-AOJ members in trouble, set the bar very high for membership, etc.
Having such private associations (that wind up with political power) is a very onerous thing. The Institute for Justice here in the US fights these sorts of fights all the time.
While I am all about freedom of association, all too often, the government becomes the tool of the association.
I think using subterfuge is legitimate.
Using stolen documents to expose wrongdoing is more complicated. Stealing David Beckham’s phone records to prove he is talking to some floozy day and night seems wrong (but interesting), stealing government files to prove the government is lying to us seems right.
There is a public interest defence in the latter case.
If it turns out the government was not lying and you get caught, that could be very tricky…
Well, a couple of comments.
In most of the world, “journalists” are propaganda spewing lapdogs, not courageous “investigative reporters” in the (mostly fictional) western style.
The status and mystique of journalists are mostly self-created by members of the media who (surprise, surprise) love themselves, and are convinced civilization would collapse without them.
The protections of the 1st amendment, and other safeguards against censorship, apply to citizens equally. There is no “special” rule just for people who have declared themselves to be reporters, and therefore exempt from the everyday rules regarding fraud, trespassing, perjury, or harrassment.
A degree in journalism is on a par with a degree in education. It means you attended some courses, not that you have a mastery of any subject.
The similarity between most media content and most educational content is not accidental, see point above, but the result of ignorance puffed up with self-importance and masquerading as significance.
Most media content is trivial sensationalism and emotionally manipulative pandering dressed up as deeply important analysis of critical events. In fact, it’s mostly ambulance and firetruck chasing, scandel mongering, and celebrity obsession, not to mention lost puppies. (See “Network”, circa 1976—nothing’s changed)
The dinosaur media’s age has past. The Web is the asteroid. In a few generations, examples of a traditional newspaper, magazine, or television network will be as quaint and antique as old photos from the 1800’s or silent movies.
A journalism guild will only impede much needed progress towards the situation described in the above point, as all guilds tend to protect their members from competition, and restrict entry into the field. In an age of worldwide communications, this is like telling people they can’t dig up their own yards becasue the guild of gardeners is now in charge of all the flowers.
Well, that’s more than a couple, but my contempt for the tabloid BS that passes for journalism in the current culture is multi-faceted. Let’s just say that “fishwrap” is too kind of a description for it most of the time.
I think some theories of justice in retribution (possibly Nozick’s) might be able to offer a way to allow people to infringe the law in a few of these sorts of cases. I don’t think there is anyway to say that a journalist hasn’t infringed someone’s rights (whoever they are) when they trespass on private property or acquire private property through fraud.
But they would only be liable to compensate the wronged individual for all their losses (including property, time wasted and inconvenience). If this wrong that took place exposed a far greater crime that the “victim” had committed, the crime committed by this investigator wouldn’t account for much (although it remains a crime if we believe that rights have side-constraints).
This would make investigative journalism a very high risk business where you are infringing liberties and potentially needing to compensate people all the time but if you were a good one, and only infringed the liberties of criminals then your costs would be outweighed by the rewards of exposing crimes. Journalists might even be able to share liabilites using insurance so that particularly good journalists who always fingered the right person would have a low excess!
I certainly don’t hold with any government, or its enforcement paraphernalia, having the luxury of the Clive Pointing trial “movable goalposts” point* and I would hesitate to support anyone who released sensitive information to a journalist which might place anyone in direct danger – some civil servant selling details of Prince Harry’s B&R deployment in Iraq would be a modern example of that. The other problem is due to the cosy relationship between the government and a large section of the dead tree media can any bureaucrat trust a journalist enough to stand by them should they blow the whistle? In this day and age it might be far safer for someone to set up an nice anonymous blog from an internet cafe and mail details of it to as many MP’s or journalists as you can think of than go down the route of giving exclusivity to one paper.
—
* In July 1984, Clive Ponting sent two documents to Labour MP, Tam Dalyell, about the sinking of the Argentine cruiser General Belgrano. Ponting admitted revealing the information and was charged with a criminal offence under Section 2 of the Official Secrets Act, resting his defence that the matter was in the public interest, and that disclosure to a Member of Parliament was therefore privileged.
Although Ponting fully expected to be imprisoned he was acquitted by the jury, despite the judge’s direction to the jury that “the public interest is what the government of the day says it is”.
“I certainly don’t hold with any government, or its enforcement paraphernalia, having the luxury of the Clive Ponting trial “movable goalposts” point”
Agreed, they don’t. But the question is, who should be able to overide the government’s decision? Any single civil servant? A single MP? A journalist? A newspaper editor? What are the safeguards? And how much of the background evidence and argument should they need to base it on? Because if you make a mistake and release someting it actually was in the national interest to keep secret, that is just as serious as making the mistake the other way. High stakes mean more care should be taken, not less.
There are procedures to deal with this. If you question whether formally classified information is correctly classified, you are supposed to raise the issue up through the management chain, to the various oversight and ethics committees, through what might be considered various internal “courts” who watchdog the intelligence services and ministries. If there has been wrongdoing, they may be able to ensure justice is served against the criminals without causing further damage in the process. And if those courts are clearly corrupt, I can see a case for contacting an opposition MP or civil judge or similarly ‘responsible’ authority. But a journalist?! And just releasing the contended information anyway, because no matter what everyone else thinks you know you’re right?
There were people who thought that nuclear weapons in the hands of only one side was dangerous, and who gave away their secrets to the likes of Stalin. There are Illuminati-obsessed conspiracy-theorists ( 😉 ) who think the means of self-defence should be in the hands of the people, and who therefore publish bathtub chemical weapons recipes and bomb-making instructions on the internet. Maybe they’re right, and Western politicians should not be the only people who can make nukes and nerve gas.
But as with many such things it is a complicated, difficult decision with good arguments to be considered for both sides. You are a firm believer in your own politics, and home-made bombs are only another sort of gun and therefore in everyone’s right to hold, but could you be that sure your decision to release the information was right? That you are right?
It is a sort of decision that I suggest journalists are supremely unqualified to make.
It is a sort of decision that I suggest journalists are supremely unqualified to make.
Then who is qualified to make it Pa ?
who should be able to overide the government’s decision? Any single civil servant? A single MP? A journalist? A newspaper editor?
Who but an individual can make any such decision? Nothing else has any concrete existence.
“Then who is qualified to make it Pa?”
People with access to all the facts and arguments to be made, personally committed to the national interest over their own or their organisation’s, independent of the partisan political viewpoints of the arguers, demonstrably intelligent and informed, and with no financial stake in the decision, people who know that they themselves are being watched suspiciously.
I expect more conditions could be added, but you get the idea. Quis custodiat custard.
🙂
“Who but an individual can make any such decision? Nothing else has any concrete existence.”
So it’s OK for the prime minister/president to be the one to make the decision? He is, after all, an individual.
I think not.
I’m a little confused. Which of these hypotheticals are we talking about here?
A reporter breaks into a government building, steals records of an illegal wiretap program, and publishes it in the New York Times.
A disgruntled employee with access to the aforementioned document gives it to said reporter, in violation of secrecy laws.
A reporter breaks into a private residence, steals records of an illegal government act, and publishes same.
A reporter breaks into a private residence, steals evidence that the resident is unfaithful to his wife, and publishes it.
The wife above lives in the house, has access to the evidence, and gives it to the reporter.
I would say that the reporter should be pretty much immune in the situations that don’t involve burglary or another act that would be a crime in any other case. Maybe a prosecution for publishing “June 6, 1944, all over Normandy” would have been in order, but I’m struggling with writing a rule that penalizes that, but allows “The government is illegally wiretapping US citizens without even the thin reed of justification that FISA gives” to be published. (I personally think that the NYT weren’t wrong for publishing it, but they were wrong for sitting on it until after the election. I would have voted very differently, had I known.)
I’m personally not in love with the notion of letting governments keeps secrets. Some secrets, sure: compromising an ongoing investigation is bad, but prior to The War Against Terror(TM) it was universal that the entire thing would be made public at some point. Compromising the exact plan to rescue the hostages in 1979 would have been bad, and the guy who gave up the Song Tay raid should hang. But again, I’m having trouble with writing a coherent rule for this, and I don’t like the “I know it when I see it” form of jurisprudence.
The common law courts have long distinguished ‘the public interest’ from ‘what the public is interested in’. They have also been quite successful in distinguishing ‘the public interest’ from ‘what public officials want’. Official investigators and unofficial investigators may have different powers in law, but they haven’t hitherto had different status: a crime is currently a crime whoever is investigating it.
It is the latter case where the danger in licensing of investigation and media lies. We have already seen a number of cases of investigators being threatened with charges of obtaining a pecuniary advantage by deception where they have taken a job in order to monitor abuses in large firms, in the civil service, or in the police. An actual criminal prosecution on such grounds would have little chance of success, but even the charge or arrest gives scope for some harrassment.
However, loss of your license, or other regulatory action, would move the onus from the harrassing authority to the harrassee. The privacy of individuals against journalistic intrusion is not going to be protected by such measures, ‘cos unless they are very connected they won’t have access to the regulatory levers. It is a handy pretext however for closing down the much more irritating to the authorities investigation of officialdom, public and private.
What’s needed is a whole new information settlement. As Pa suggests, government secrecy and government pseudo-openness (as in “freedom of information”) cause all sorts of trouble because the means of public scrutiny just aren’t there. The concepts aren’t either.
Likewise privacy and confidentiality, and any framework for the proper handling of information are conceptually undeveloped, and government likes it that way. Murky understanding in the public and in the law allows for more and better smoekscreens.
Sunfish,
Yeah, that was one of the ones I was thinking of. In cases 1, 2, and 3, the big question one has to ask is “was it actually illegal/immoral?” And there is some dispute over that question.
But it’s too late to debate the issue now because you’ve just blown a vital anti-terrorist option that you’ve only just now discovered was authorised, confirmed to be legal, had heavy oversight and monitoring to prevent abuses, and had actually been briefed to the leaders of the opposition Democrats to keep them in the loop and as an additional safeguard. Oooops!
And how do you go about weighing the potential cost from helping terrorists bent on defeating America versus the constitutional risk from keeping quiet about intelligence operations for which all the paperwork supposedly isn’t being done?
(Unless of course you yourself are also bent on defeating America, in which case the decision is easy.)
The newspaper looked at the thin sliver of evidence, sat as judge and jury in deciding whether the programme was illegal, and unilaterally decided in their own favour to declassify all the information about it. Who gave them that power? And our civil judicial system is subject to checks and balances, police have rules to follow in collecting evidence, the accused has the right to present a case for the defence, judges have to be well-qualified and not too obviously partisan, you can make appeals to higher courts, and the sentence has to be within the guidelines laid down by law. Where are all the checks on abuse of power here?
As for the other two cases, I don’t think adultery is actually illegal, unless you’re someplace like Iran, and whether it was moral to expose it would depend on the circumstances. Was the wife after a divorce case and half her rich husband’s estate? Was the supposed mistress simply after blackmail material and there was no actual affair? Did the wife cheat first and the husband only cheated in revenge? Was the evidence faked? Is the offence sufficient to justify ruining someone’s entire life and career? What damage will the revelations do to the wife and kids, or the mistress, or anyone else involved?
Is the case being brought not for moral reasons but for financial or political ones, in order to impeach a sitting President you don’t like, say?
The press set themselves up as judge and jury of a higher court: the fourth estate to watchdog the rich and powerful. But the only thing some of them are interested in is whether they can publish the story without being prosecuted, and they are themselves often among the rich and powerful. Do you think that’s totally safe? 🙂
If a government can’t keep secret information secure against journalists, then its chances of keeping it secure against spies are small.
I take the view that if it is reasonable and justified for the cops to do it, it is justified for me to do it.
Posted by Perry de Havilland at April 28, 2007 01:41 PM
Why is it that though Perry is the nicest of guys, he inevitably gets it wrong? The essential problem with this is that journos have no legal rights in the matter and are setting themselves up as above the law to do this.
That’s why, for better or worse and my own blog is scathing about “the power”, Perry is stating some very dangerous thinking here.
James, if the cops are justified in using force to do something, so am I. If they are not, neither am I. The fact we pay for professional law enforcement should not mean they follow a different set of rules to everyone else. It is a matter of practicality that we use cops, nothing more (and that is not to say matters of practicality are not important).
If a law stands in the way of justice, however, I as a private individual feel no obligation to obey it, but that does not mean I think I can break an unreasonable law and not get arrested… but then this is a power/risk/morality calculation, not an issue of rights or reasonableness.
Professional law enforcers cannot really decide which laws they will and will not enforce however, so if anything I am less bound by law, quite reasonably, than the cops. It is also why I think it is crazy to give the cops (state) a monopoly on the means of lethal self defence as I do not think cops legitimately have ‘special powers’, they are just professionals exercising the rights and responsibilities we all have (hopefully in a professional way).
James and Perry,
You are both reducing a complex matter—policing in a generally free and open society—to a simplistic, gunfight-at-the-ok-corrall style scenario which has little to do with the great bulk of any ordinary police officer’s daily work.
Yes, the powers are derived from, and granted by, the citizenry. But the police are focused on crime and criminals in a continuous way, as a dentist is focused on teeth and oral hygiene, not as an occasional intrusion into their normal lives, as one would hope an ordinary, non-police, citizen would view criminal activity.
This work, then, has very little to do with confrontations involving deadly force, and a great deal to do with suppressing crime, investigating it when it occurs, and apprehending the criminals after the fact.
The purpose in all of this activity after a crime occurs is the preparation of cases for presentation to the court, not seeing if the officer or detective can confront and shoot somebody, as is the unfortunate impression given by much of popular fiction and entertainment.
As the author Joe Wambaugh has stated many times, it is much more dangerous physically to be a liquor store clerk or fire fighter than police officer, but there is no more dangerous job psychologically than dealing on a daily basis with the criminal subculture, in which all values are inverted, and violence is always the final arbiter.
It is for their willingness to deal with so many distasteful and disgusting situations and elements in our society that we hire and pay police officers, not for their rare violent confrontations. There is no pay scale for that, just as their is no suitable amount to reward someone who runs into a burning building to save a child, or stands on the front lines in some godforsaken hellhole.
For these acts of pure duty, there is only gratitude, and respect—the gold coins of the soul.
Anyway, this is OT, and I apologize for the digression.
VR hits the nail on the head: Journalists, at least American ones, seem uniquely unqualified. Or rather, nobody seems to mind when journalists make careers covering fields they appear to know little about.
Pa Annoyed, I wish that the checks and balances in government always worked. But I think your support of the government processes omit the important point that powerful people in government lie frequently and use those very same processes to cover their tracks.
Despite the NY Times’s complete inability to get some things right, we are lucky they are out there poking their noses into things politicians from JFK to GWB would rather keep hidden from us.
That was rather my point, veryretired. We have professional cops because not many of us want to spend the time and resources to be able to do what cops do… but that does not mean cops should have special powers that under the appropriate conditions should not apply to any one. It is a matter of practicality that we arrange for things like search warrants and wire taps, but I can theorise circumstances in which private people can do those things too, usually journalists, and it can be quite justified “in the public interest”. And when it is not, well I also have no problem with treating intrusions as breaking and entering.
“powerful people in government lie frequently and use those very same processes to cover their tracks.”
How would you know? The outcome of those processes has to be kept secret, but that doesn’t mean they don’t pay a price.
And of course people lie to protect themselves. They do it with the media too. The problem is that the media can be a bit selective about which lies they choose to believe.
“we are lucky they are out there poking their noses into things politicians from JFK to GWB would rather keep hidden from us. “
Yes. Shame they don’t poke their noses into things the politicians of al Qaida and Hezbollah and Hamas would like to keep hidden from us with quite the same enthusiasm.
Or the UN, or dozens of others far more deserving. And they can be a bit reticent about probing other media people, too, when a scandal hits.
I’m rather glad I live in a country with a free press (even if it chooses to maximise sales and minimise its dignity with drivel about barely sentient celebs and so on), particularly when I look at the sort of countries which don’t.
And Watergate.
THANK YOU! THANK YOU! THANK YOU!
Letting the Government’s Goons With Guns(TM) decide for themselves which laws are for real and which may be ignored is a dangerous place to go. Sure, we have to use a certain amount of discretion. Otherwise, I’d spend 80 hours a week in court testifying on tickets for “Displayed expired number plates 1-29 days beyond renewal period” or “Vehicle had no license plate light.” Take that up with your state legislature: ask them if they really want the cops to spend time on crap like that. Alas, they didn’t ask us for our opinion about what to enforce and what to ignore.
I am frankly terrified of the precedent that we can ignore some violations according to our sole judgment. Plenty of cops did that with domestic violence for a century or so, and the resultant body count is why we had mandatory-arrest shoved down our throats. Plenty of cops historically ignored violent crimes committed by whites against blacks and…you can see where I’m going with this. Even if you take it as read that 99% of cops are clean and aboveboard and not on power trips (true in my experience) the remaining one percent have the power to royally screw up one’s life. (This is also why I agree with the Met IA cop you quote elsewhere: that power means that nothing is small when a cop does it.)
As for the powers that we have that the general public (and the reporters) don’t: Issuing summons to appear, in cases where a custodial arrest is inappropriate, applying for and serving warrants, detaining people in cases where a full arrest isn’t justified, and carrying concealed firearms. Personally, I think the last one should be more available than it is. I like the Vermont/Alaska system in principle, and the shall-issue system we have now isn’t too bad either.
The others are supposed to be reserved for investigation and prosecution of crime, and not for “reporting to the public” or “serving the public’s right to know.” Realistically, how many people can recite from memory the circumstances in which we’re legally justified in detaining a person, and whether we can move that someone, and how long we can hold him, without arresting? How many people know from memory when a warrant is or is not required for a search? How many people would be able to answer those questions with five minutes or less of research?
We go to schools for that crap and still get it wrong often enough. I’m a little leery of extending the same powers to people who may have no background at all in the subject, or not a whole hell of a lot of background.
Also, it was noted above: journalists do what they do for a private purpose, rather than some supposedly-public purpose. I worry enough about the potential for abuse of these tools even with the allowable uses limited to certain people and certain circumstances as they are now.
(Oh, I forgot: you can be prosecuted for resisting arrest if you resist arrest. However, I think that may also apply to citizen’s arrest as well. Not positive on this point.)
Pa Annoyed,
When you state that I could not know that politicians lie and then obfuscate, you confuse me. Who does not know about Watergate, Iran-Contra, or l’affaire Lewinsky?
And by the way, you are saying the NY Times is no good because they are better at covering and critiquing the US government than foreign ones? You may forget that New York City is in the US, not the Near East. Of course they will write more about the US than, um, Abu Dhabi or Lebanon.
Who does a better job on Hezbollah? Who? Why do you think so?
Have you looked at the masthead of the NYT and seen who writes, edits, and owns the paper? There may be plenty of bias toward Arabs in the BBC, but I would love to see a study showing the newspaper of Friedman, Rosenthal, and Sulzberg is pro Hizbollah and al-Qaida.
And yes, the NYT is not perfect, as I stated in my first post. Frankly, it is reflexively pro-statist in multiple issue areas. But can you name another publication that employs the likes of Byron Calame, the Public Editor? His job is to catch and publish the errors the rest of the Times makes.
Really, where are these papers that are so much more cosmopolitan and circumspect than the NYT? If you can name one I will be indebted to you.
Errr… according to them, yes. In practice, their main goals are to outlaw any competition and keep their members free from standards. Or were you joking? Joke, right? Ha.