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Resolving the journalism vs. justice argument isn’t always easy

When justice meets journalism, an early question these days is this: What is a journalist?

Fox News reporter Jana Winter may go to jail for refusing to reveal her sources in reporting on the James Holmes case.

In every democratic society, the freedom of the press is sacrosanct – but it often butts heads with other individual rights, and constitutional guarantees. So it is now, as another such case comes forward; and sometimes the answers are not so clear.

Briefly, a Fox News reporter named Jana Winter recently went to Colorado to do some investigative reporting on James Holmes and the Aurora theater shootings, which killed 12 and injured 58. In anticipation of a trial, the judge in the case issued a strict “gag order” warning all involved in the investigation to not divulge any information relating to the case. 

Winter was aware of that order, but continued anyway in what was a competent reporting job that did include gathering some confidential information from unnamed sources. The court ordered her to reveal the names of those who provided the information in accordance with the previously ordered gag rule. She is refusing, and may go to jail.

Put herself in harm’s way

To begin with, when Winter started her reporting, she knew that obtaining such information would violate the court’s order – but she proceeded anyway. In effect, she deliberately put herself in harm’s way, and now is paying the consequences. If you voluntarily choose to violate a law, you must be prepared to suffer the results.

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But there are larger questions to be considered. First among them is “what is a journalist” whose press rights should be protected. That is no longer clear in our society. When the Constitution was written, the “press” meant just that – having a printing press. Today, is merely wearing a badge that says “PRESS” sufficient, or are there other needed qualifications?

Is a blogger a journalist free to publish any information in a criminal case, no  matter how unreliable? And in the electronic media, news today is commonly not run by true professional “journalists” – at least not the kind we knew of in years past. There are no Walter Cronkites, Edward R. Murrows, Huntley/Brinkleys, or even Dan Rathers among them in today’s news. Most are merely presenters, and their chief asset seems to be appearance. Thus the whole definition of “journalists” has been morphed into something quite different. 

Wider definition of ‘news’

This raises new paradigms about press “freedom” — which brings us to what the news really is today. For the electronic media it is frequently an indistinguishable mixture of entertainment, soft news, opinion and (too often)  weak facts – a good reason to issue a gag rule as the judge did in this case. Additionally, “news” today not only comes over the airwaves and in print, it navigates on the Internet, often as unreliable or not credibly true. And as it wends it way around the ether, it often gets distorted further.

Given all that, keeping evidence sterile has significant value in our justice system.

There is conflict here between freedom of the press, the court’s gag order, Holmes’ right not to be prejudged, and the early release of confidential information that may make it harder to impanel an objective jury. Conceding that such a “conflict” between the press and the justice system exists, I would opt for the justice system. First, it trumps any need for the public to know all the details of the case before it is tried; and secondly, given the facts we do know, why would we wish to imperil this capital case and see justice undone by having a possibly flawed trial, and subject to potentially long appeals?

Prominent case was in Minnesota

As a related side story, one of the first and most prominent cases on freedom of the press was actually a Minnesota event: Near vs. Minnesota. 

In 1927, Jay M. Near, who has been described as “anti-Catholicanti-Semiticanti-black and anti-labor” began publishing The Saturday Press in Minneapolis. Citing the Public Nuisance Law of 1925, the state Supreme Court did not believe that the right was intended to protect the publishing of “scandalous material,” but that it only provided “a shield for the honest, careful and conscientious press,” not the “defamer and the scandalmonger.” Instead, “[h]e who uses the press is responsible for its abuse.” (Emphasis mine).  

Near appealed this decision to the U.S. Supreme Court, which reversed the decision of the Minnesota Supreme Court and ruled that the Public Nuisance Law of 1925 was unconstitutional, based not on the First Amendment, but the Fourteenth. However, it left a loophole which would be used later for other prior restraint cases, citing certain circumstances in which prior restraint could potentially be used. And they were. So, we are back to the Winter case, and now dealing with freedom of the press as it exists in the 21st century.

Profession has morphed greatly

Having been in the advertising-agency business (and closely associated with media) for almost 50 years, and a lifelong member of the ACLU, I have the highest regard for the press and its rights and freedoms. But today, it is increasingly unclear what constitutes the “press,” especially when you add in the impact of the Internet. The profession of journalism has morphed greatly, and the definition of a “journalist” can be vague.

Moreover, the proliferation of cable news shows is so substantial, the media so voracious for content, and the need for speed so great, that the news product today is often sloppy, or worse. Given that, keeping premature news at least out of pending individual criminal trials has strong validity. And that answers why arguments of journalism versus justice are not so simple. 

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Myles Spicer of Minnetonka has spent his business career as a professional writer and owned several successful ad agencies over the past 45 years.


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