A very smart move by the Boston Herald: Kimberly Atkins, who covered state politics for the paper before moving to Washington in 2006, will become the tabloid’s full-time Washington reporter. Atkins has been writing a political column part-time for the Herald in recent years in addition to covering legal issues for the Lawyers Weekly newspapers. She tells me by email:
I’m really excited! Covering the law was fun, but I really missed covering politics regularly. And with all the big Supreme Court cases coming up (Facebook threats, state same-sex marriage ban challenges, the trio of Obamacare challenges) I’ll still be able to flex my legal brain pretty frequently as well.
Atkins, who’s also a lawyer, will be the Herald’s first full-time Washington reporter since Andrew Miga, who’s been working for the Associated Press since 2005. Herald editor-in-chief Joe Sciacca says in the Herald announcement, “Kimberly is very smart and politically savvy and our readers will benefit by her knowledge of the inner workings of the nation’s capital.”
Here’s something I completely forgot when I wrote recently about the IRS’s assault on nonprofit journalism: The Associated Press is a nonprofit. It’s time for the IRS to resume approving 501(c)(3) status for nonprofit news organizations.
The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.
The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.
Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”
In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.
American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.
The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.
But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.
Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.
More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:
So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.
More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.
This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.
Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.
A lot of outrage has been generated over the Department of Justice’s secret subpoena of the Associated Press’ phone records, and I share that outrage.
But what the DOJ did was not new and not illegal — it was, rather, the latest example of overreach by an administration that has demonstrated its contempt for the role of a free press in a democratic society. Which, of course, makes the Obama White House no different from (though more zealous than) most of its predecessors.
Erik Wemple of The Washington Post explains by dredging up a similar, if less sweeping, case from years past, and in the process does a good job of showing why it matters. If the press can’t promise sources anonymity, it can’t perform its role as a check on government.
An editorial in The New York Times endorses a long-stalled federal shield law that would provide journalists with greater protections than they now have with regard to protecting confidential sources — a move that President Obama is now pushing for.
But what does Obama care? As the Times points out, such a law probably would have made no difference in the AP scandal, since all the DOJ would have had to do was invoke one of the exceptions built into the bill.
The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way. A century’s worth of rulings by the U.S. Supreme Court holds that though the media have an enormous amount of protection under the First Amendment to publish or broadcast, they have no more rights than ordinary citizens when it comes to newsgathering.
Here is the Supreme Court in Branzburg v. Hayes (1972) explaining why it would be impossible to created a protected class of journalists who would enjoy an absolute right to protect their sources:
Liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.
The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.
The problem with getting all worked up over the IRS scandal is that we don’t have any outrage left over for the stories that really matter.
Tonight we learn that President Obama’s Justice Department “secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a ‘massive and unprecedented intrusion’ into how news organizations gather the news.”
And here’s some context: a piece I wrote for the Huffington Post in February 2012 headlined “Obama’s War on Journalism.”
On Wednesday afternoon, as the media were having a nervous breakdown over the bombing suspect who was/was not in custody, I received a private message over Twitter from a friend who’s a longtime newspaper reporter:
They were saying they had multiple sources. You know what the problem is, they don’t name their sources. If you had no anonymous sources, then whoever gave them the information would be on the hook. Only in extreme cases do we use anonymous sources!
Leaving aside the obvious fact that this really is an extreme case, my friend is exactly right. Every time there’s a huge breaking news story, it seems, news organizations report developments that turn out to be wrong — and that were based on anonymous law-enforcement sources.
Maybe that could be justified a generation ago, when such leaks were used to develop reliable stories. But now the pressure to publish/broadcast/tweet immediately is so overwhelming that a bombshell from an anonymous source leads not to more reporting but, rather, to an immediate, breathless update.
CNN got most of the attention on Wednesday, and, as a repeat offender, it really ought to be more careful. The Associated Press got it wrong, too, and that matters because editors generally don’t double-check the AP — they’re paying for the service, after all, and the AP is treated as an extension of their own newsrooms.
The Boston Globe, the Boston Herald and local TV and radio stations got it wrong, too. The Herald has a useful timeline on page 4 today. I couldn’t find it on the paper’s website, but I’ll add a link if someone has it.
Please! Can I urge all Twitter users to disregard rumours from mainstream media until confirmed on Twitter (I've always wanted to say that!)
So was the source or sources normally reliable, which is the argument we’re hearing from some of those who got burned? I think that’s the wrong question. It’s the reliance on anonymous sources that’s the problem, not whether those sources were right or wrong. That may be the way it’s always been done. But if Wednesday didn’t prove that there’s something wrong with the old model, then what will?
Washington Post media blogger Erik Wemple has a good take on what happened Wednesday, including the full text of the FBI smackdown. At Poynter, Andrew Beaujon and Mallary Jean Tenore put together a Storify that tracks how the initial news and the embarrassing walkback played out on Twitter.
The Boston Globe does some major recycling today by publishing a year-old story on the political battle over same-sex marriage. The story, by David Crary of the Associated Press, appears on page A11 of the print eReader edition* and begins:
Foes and supporters of same-sex marriage are gearing up for five costly and bruising statewide showdowns in the coming months on an issue that evenly divides Americans.
It’s an election year subplot sure to stir up heated emotions …
Subplot: The story appears nowhere today at the paid BostonGlobe.com site. I had to look it up in the ePaper edition after being asked about it on Twitter by @NotSoNiceville. Isn’t BostonGlobe.com, which is a paid site, supposed to include every story in the print edition?
*Update: Eagle-eyed David Bernstein reports that the entire page A11 of the eReader edition is from March 8, 2012. So apparently this is a problem with the eReader edition only — not with the print edition, which only appears up here in Media Nation on Sundays.
Update II:From @BostonGlobePR: “Due to a production error, pages from 3/11/2012 were appended to today’s ePaper. The edition will be corrected and reprocessed.”
Update III: As commenter Bill Ritchotte noted earlier today, the Globe’s free Boston.com site posted an item from a syndication service called the Prudent Investor “reporting” that Nobel Prize-winning economist (and New York Times columnist) Paul Krugman had declared bankruptcy.
In fact, the Prudent Investor had been taken in by a satirical site called the Daily Currant. There’s a German angle as well. Mediaite has the details and Romenesko has an image of the Boston.com page before the item was taken down. For what it’s worth, I’m told Boston.com runs the Prudent Investor feed on autopilot.
Update IV (2:30 p.m.):I just received an email from Globe spokeswoman Ellen Clegg. She writes: “The post about Paul Krugman was an automatic feed on a partner website, FinancialContent.com, which Boston.com uses to provide stock and other financial data. The story did not originate with the Boston Globe or Boston.com, and we worked to get it taken down as soon as we heard about it from readers. We have asked FinancialContent.com to provide us with more information as to how this story was added into their financial news feed.”
Congratulations and best wishes to Laura Crimaldi, who left the Boston Herald this week and will soon start a one-year temporary job at the Associated Press’ bureau in Providence, where she’ll focus on law enforcement and the legal system.
I’ve gotten to know Laura through her work with the New England First Amendment Center at Northeastern University, for whom I occasionally contribute blog items. Laura is a director of the center, and has done a great job of re-energizing the blog.
Laura’s married to longtime Herald photographer Mark Garfinkel, who worked with Mrs. Media Nation at the Beverly Times back in the day. (The Times was later subsumed into the Salem News.) I don’t know if it’s a small world, but Greater Boston is definitely a small town.
Robert Bertsche, a prominent First Amendment lawyer in Boston, passes along the latest news from the AP Stylebook Online (yes, I’m too cheap to subscribe):
dwarf The preferred term for people with a medical or genetic condition resulting in short stature. Plural is dwarfs.
midget Considered offensive when used to describe a person of short stature. Dwarf is the preferred term for people with that medical or genetic condition.
My 2004 edition of the AP Stylebook does not contain an entry for either word. Clearly the dwarfism community is making progress in its efforts to educate the public about the “M”-word.
In 2009, the New York Times’ then-public editor, Clark Hoyt, wrote that the Times had concluded the “M”-word was offensive.
I discuss the rise and fall of the “M”-word in Chapter Seven of my book on dwarfism, “Little People.”
