Saturday, September 17, 2016

Jailed Journalists Make Their Case for Federal Shield Law

Work is underway on national legislation that would safeguard journalists from having to reveal their sources. But exactly who would the proposed shield law cover - and to what extent would it protect them from incarceration and other legal repercussions?

SILENCED Reporter Brian Karem spent a month behind bars for refusing to reveal anonymous sources to a judge in 1990. Legal supports for journalists, he said at a recent Atlanta event, are hardly any better today. "We all know the protection of the First Amendment has evaporated," he said. "It is a myth, it does not exist."


By: James Swift
@UNJournalism

Brian Karem, the executive editor of The Montgomery County Sentinel and Prince George's Sentinel and publisher of the website MoCoVox, recalled an episode of The Newsroom in which Jeff Daniels' grizzled news anchor character Will McAvoy refuses to name one of his sources to a judge.

A friend asked Karem if, he too, walked into a jail cell with his head held high when he was found in contempt of court in 1990.

"I go, yeah, no, it wasn't anything like that at all," Karem recounted with a nervous chuckle at a Sept. 9 Atlanta Press Club event. 


The question did, however, get him thinking about just how many journalists in the U.S. have been arrested and detained for refusing to name names to judges. As it turns out, it's pretty exclusive company - counting himself, Karem said there are slightly more than a dozen such reporters in the entire United States.

Two years ago, Karem rounded up 13 other journalists who were, at one point, put behind bars for not complying with subpoenas or other court orders. "The First Jailbirds Club," he nicknamed his colleagues, appeared on stage for the first time together at the National Press Club in Washington D.C. in 2015.

"We went to jail for a variety of different reasons," he said, "but all of them were to defend the First Amendment."

Since then, Karem and his fellow "jailbirds" have toured the nation to rally for a federal "shield law" 
that would protect reporters from having to disclose information about anonymous sources to prosecutors. Formerly incarcerated journalist Joshua Wolf - who was jailed for 226 days after he refused to hand over video of a 2005 San Francisco protest to police and testify before a grand jury - has been tasked with putting the text of the bill together.

Karem said he's talked to "75 to 80" members of Congress about the proposal. "Speaking with Jamie Raskin, Chris Van Hollen and other members of the delegation of Maryland, we have people who will support us," he said. "Our biggest problem, of course, was the Snowden incident has scared a lot of congressmen away from us."

It's an interesting topic to revisit, Karem said, having just returned from covering a refugee camp in France. He recounts many conversations with reporters in London and Paris about what it's like to be "protected" by the First Amendment. Whereas government meddling in the U.S. isn't quite as blunt as it is in Europe - lest we forget The Guardian employees who were forced to destroy their own equipment by the U.K.'s Government Communications Headquarters in the weak of the 2013 National Security Administration leaks
he nonetheless argues that "reporter's privilege" in America is nothing more than a fantasy. 

"Every president in my lifetime, from Ronald Reagan on, has helped to destroy our First Amendment," Karem said. "Right, left or down the middle, if you are a journalist and you care about your craft in this country, one thing that you should be well aware of is that the First Amendment that we labor under does not exist."

The San Antonio Saga

In 1989, Karem was working for San Antonio television station KMOL-TV. At the time, there

was a rash of incidents involving attacks on police officers. He gave his night photographer a standing order to let him know if anything went down after hours.

On March 27, policeman Gary Williams was shot during his overnight shift. He died the next day. The police department announced that two youths - brothers Henry David Hernandez and Julian Hernandez - were responsible for Williams' murder.

"Through three sources, I was able to get an interview with Henry David Hernandez, a telephone interview, while he was in jail," Karem said. "He confessed to killing the police officer, but he said it was in self-defense, and said the police officer was acting strangely the night of the murder."

After the interview aired, Karem was subpoenaed by police. He refused to name his contacts to an arraignment judge, who - despite not having the legal ability to order the punishment - put Karem behind bars for contempt. 

"For me, the information was important, not the conduit to it," Karem recounted. 

Although Karem was released shortly thereafter, the case itself lingered for about two years. "There was always the imminent threat and always the subpoenas," he said. "and the police began to really, really hate me."

They hated him even more when he broke news about Gary Williams' toxicology report, which cast doubt on the police's account of the homicide. 

"Six weeks after the homicide, the autopsy on the dead police officer came back." Karem said. "He had been speedballing the night of his death. He had enough cocaine and heroin in his blood stream to register, even though they did six blood transfusions on him. It was in his fingernails, his bone marrow. He was an addict."

Things got very difficult for Karem when the trial went before a federal judge in 1990. The district attorney said that Karem had interjected himself into the murder case and deserved to go to jail as long as the Hernandez brothers. If that wasn't enough of a headache, a representative of the American Civil Liberties Union representing the accused murderer knew it was advantageous for his client if the reporter continued being "roasted." Together, Karem said the ACLU and DA teamed up to make him look like an opportunist who was only interested in the story to promote his own self-interests.

"The ACLU attorney said 'Mr. Karem, who is your source?' and I looked at him and I said 'You have greater access to your client than I do, why don't you ask him who the source is?" Karem recollected. When he refused to name his source yet again, Karem was sentenced to six months in jail.

Eventually, Karem's appeal efforts reached all the way to the Supreme Court of the United States. His emergency request was shot down by a 7-2 decision in July 1990"They said the First Amendment did not apply and I could stay in jail for as long as I chose," he said. 

Karem unexpectedly found himself a free man when his third and final "anonymous" contact broke her silence. "The sheriff said 'Well, there ain't no point in keeping him in there, she done said it,'" Karem recollected. "The sheriff named her and I got out of jail that way." 

Throughout the ordeal Karem was jailed four times. His total time incarcerated came out to about a month. 

Dubious 'Honors'

A PIONEERING PRISONER WSB-TV producer
Brad Stone was the first television reporter in U.S.
history jailed for refusing to reveal his sources.
Joining Karem in Atlanta that evening was local WSB-TV television producer Brad Stone - a man who has the distinction (be it proud or ignoble) of being the first television reporter in American history to be jailed for not revealing his sources. 

While working in Detroit, 27-year-old Stone was assigned his first investigative feature in 1985. It was a story about the inner workings of the city's drug trade, and featured many gang members speaking anonymously about their criminal enterprises.

After an off-duty state trooper was gunned down by a suspected gang member, Detroit police asked Stone to fork over his footage. Although Michigan at the time had a fairly sturdy shield law to protect reporters, it was undone by a major loophole - a state bill penned in 1949, well before the proliferation of television as a major medium, the law gave absolutely no legal protection to broadcast reporters. 

"Every month, I would be told I was going to jail, and at the last minute, there would be a stay," Stone recalled. In Sept. 1986, a judge finally sentenced him to four months in jail. Ultimately, Stone only served two days - following heavy coverage on Nightline and the CBS Evening News, a federal appeals court judge granted him a stay and he was released from police custody.

For the next three years, Stone said he remained in constant contact with corporate lawyers about the case. Indeed, he said he spent so much time prepping for more court appearances that it left him little time to focus on his actual professional craft. 

"It went on for a couple more years," he said. "Cops would show up at night and harass me. I'd pull into my driveway and I'd be surrounded by police cars. They'd throw me up against the car and give me a hard time. It was before the age of cell phones, so I couldn't really document that."

Joining Stone and Karem by telephone were video blogger Joshua Wolf and and Houston-area reporter Vanessa Leggett. Comparatively, Karem said he and Stone were "pikers" - Wolf spent 226 days in jail for refusing to give San Francisco police video footage of an officer beating while Leggett spent 167 days in the clink for refusing to hand over what she described as an "overbroad" amount of material related to a double jeopardy case to to federal prosecutors

In Leggett's case, her legal difficulties swirled around a true crime book she was writing around 2001. She interviewed an individual who was the target of a federal investigation, as well as a man who claimed to be a hitman (who, incidentally, died before the trial began.) After she gave her interview materials to federal prosecutors under a subpoena, she claims they "got greedy" and demanded an absurd amount of additional evidence, including all the notes and videos she used for every interview she conducted going back four years. She alleged that she was targeted because two of her sources for the book were FBI employees themselves, and they wanted to "control" whatever information seeped out from the book. At one point, Leggett said the FBI went as far as to ask her to be an "informant" in the very case against the individual she was profiling for her own book. 

Wolf holds the all-time record for most time behind bars - a staggering 226 days. The self-proclaimed "anarchist" recounted how his case blossomed into a labyrinthine mess. Initially, the FBI got involved because one of the officers injured in the protest was gay, and the head of San Francisco's police union LGBT division sought hate crime charges against the alleged attacker. After that fizzled out, the FBI pursued the case as "attempted arson" after a police car tail light was smashed. The smoke billowing out of the dented bumper, Wolf said, was used as an anchor point to potentially pursue the protest as a domestic terror incident.

Unlike Stone and Karem, however, the amateur, unaffiliated and uncredentialed Wolf did not have access to the same high-power legal representation in court. He would, however, receive pro bono representation courtesy of advocacy organizations, including the First Amendment Project.

When he wouldn't testify about either the police beating or damaged squad car to a grand jury, Wolf was held in contempt of court. He spent all of Aug. 2006 in jail; he was briefly released, before a panel of appeals court judges upheld affirmed the contempt order roughly a week later. He went back to jail in late Sept. 2006, where he stayed until April 3, 2007.

A Shield for Whom? 

Today, 48 states (the lone holdouts are Hawaii and Wyoming) have some form of "shield law" on their books, allowing reporters fluctuating degrees of protection in court. The inherent problem is that the scope of coverage varies drastically from state-to-state. The idea of a federal shield law is fairly straightforward - the creation of a common set of standards that apply to all reporters working across the United States, unquestionably ironing out just how far their legal rights extend. As recently as 2014, attempts at federal legislation broadening reporter's privilege and protecting journalist sources have made their way to Congress. Alas, the Free Flow of Information Act - which has been swimming around, in some form or fashion, on Capitol Hill since 2007 - has yet to gain much traction in the upper house. While the 2015 Commerce, Justice, Science Appropriations Act did contain a provision that "prohibits funds to compel a journalist or reporter to testify about information or sources that they regard to be confidential," the House-approved bill, perhaps unsurprisingly, died a quick death once it hit the Senate. 
PHONING IT IN: Fellow jailed journalists Joshua Wolf and
Vanessa Leggett joined Karem by phone at the Sept. 9 event in
Atlanta. 

As to why the Senate put the kibosh on the latest attempt to expand journalists' ability to protect sources, the panelists differ. Stone blames the last failure on too many adjoining provisions tacked on to it ("just pass a bill without all the riders, that's the problem," he remarked.) Meanwhile, Karem said legislators were hesitant to unshackle the hands of the press in the political aftermath of the Snowden leaks.

While he couldn't get too specific about the new federal shield law text, Karem said he wants the bill to go far beyond granting reporters the ability to refuse testimony. More than simply safeguarding journalists from incarceration, he said he wants a component of the proposed law to allow reporters who are "indiscriminately" targeted for resource-draining legal battles to pursue punitive damages.

"If the government is allowed to get away with screwing with you just because they can, it doesn't matter if they put you in jail," he said. "They're just going to screw with you and take all your money, and that is economic slavery."

The trickiest aspect of the draft, Wolf said, isn't what protections are afforded, but to whom those legal safeguards impact.

"When it comes to the way the new law is drafted, I think it's critical to protect the journalism and not journalists," he said. "Anyone can be committing journalism if you can demonstrate there's a reason why you have the information ... when it comes to what needs to be prohibited or exempted from this new law, we've been as limited as possible."

And that leads to a fairly vexing philosophical question - what is it, exactly, that makes someone a journalist?

That's a dilemma Karem has dealt with since he was a college student at the University of Missouri in the early 1980s. While the Internet wasn't in existence yet, he recalls encountering plenty of pamphlets and one-sheets produced by cranks, crackpots and other highly suspicious sources. And of course, thanks to the World Wide Web, practically everyone has the ability to mass distribute their unvetted opinions as nonfactual fact.

"The guy who confronted Buzz Aldrin and asked him to swear on a bible," Karem said, "he thought he was acting as a journalist."

Karem described journalism as a three-tiered process - "the recording of events, the vetting of facts [and] putting it out." As such, the proposed shield law would apply not just to the major media heavy hitters, but fundamentally, any blogger or passer by with a smart phone who makes an effort to distribute fact-checked information to a mass audience.

"It cannot be 'you work for the A.P. or you work for WSB or you run two newspapers or you write for Playboy,'" he said. "It's all of that, and it's Josh, it's the bloggers doing the actions of a journalist."

Karem said the federal shield law, in some incarnation, will become reality over the next decade.

"I would be hopeful, depending on what happens this fall, that we can get it passed in the next two to four years," he said. "I think that would be realistic if we can get people to assist us to push for it and to not back off."

Depending on how the Senate falls out after the November general election, Karem said the bill could be a "shoo-in." As far as executive branch meddling is concerned, he does not believe that either Hillary Clinton or Donald Trump would be likely to nix the proposal if it hit the Oval Office.

"I don't think any president will veto it," he said. "I don't think any president will support it, either."

The Problems Within

Alas, Karem argues that governmental interference is but one of many problems plaguing the news industry these days.

"We've been chasing our platform - the platforms on which we distribute information has changed daily," he said, "but we have sacrificed what the coin of the realm is. The coin of the real is not the platform, it's the information." 

He recounts speaking with a legislator's aide recently, who told him that the media is in such a state of disarray that today represents "a golden age for crooked politicians."  Younger journalists don't grasp the complexities of data collection and older journalists don't understand the power of the Internet. As a result, Karem said the government regularly runs roughshod over reporters. "We used to come in as men and women of conscience," he said. "Instead, we've become these people that, after awhile, think we're a part of the party."

The problem, Karem stated, was that media consolidation (he referred to Gannet Corp. as "one of the biggest piles of manure out there") has resulted in fewer and fewer reporters actually hitting the streets. Bureau eliminations and media buyouts, he said, naturally resulted in fewer and fewer jobs - to the point that even national news correspondents are reduced to "one-man banding" operations.

"Anyone can have an opinion, but facts are sacred," Karem said. "We've sacrificed getting that information so we can TMZ you to death."

Another problem? Karem said, while the general public wants vetted facts, they simply do not trust the handiwork of journalists. As a collective industry, he said reporters have failed to adequately explain why citizens should care about illegal slush funds and other misappropriations of tax dollars. 

"It's a matter of making people understand why it affects them," he said. "We're in the communications business, and I will submit to you, I do not think we communicate very well to our audiences why the information is important."

Despite Karem's concerns about the general public not trusting journalists, one of the areas the proposed federal shield law doesn't address is journalistic malfeasance and misconduct from reporters themselves. 

"The lack of producing facts, you don't need protection from that," Karem said. "When they aren't factual, we're not taking away the ability to sue. What we're trying to do is protect real journalism." 

So  how would the hypothetical law prevent hoaxers and fraudsters like Janet Cooke, Stephen Glass and Jayson Blair from using the national legislation as a legal safeguard to cover up their own fabrications?

"There's no guarantee of that ever," Karem said. "If you want a guarantee for that, you might as well guarantee people won't fall off ladders."


Uncommon Journalism, 2016.

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