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The making of a First Amendment martyr

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

08.22.01

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From the northernmost reaches of Canada to the tip of Chile, only three people in the Western Hemisphere languish in prison for doing the work of a journalist. Two of them are in jail in Cuba and the third has begun her second month of imprisonment in the United States.

This rather embarrassing piece of news comes to us from the Committee to Protect Journalists, which monitors despots and dictators around the world who abuse, harass and jail journalists considered inconvenient to official policies. Our sense of ourselves is that our government shouldn't be a candidate for membership in that kind of club.

But there we are.

Vanessa Leggett, a 33-year-old writer and university lecturer in Houston, was sent to jail on July 20 by a federal judge. The charge was contempt of court. The offense was refusing to turn over four years' worth of interview material to a federal grand jury investigating possible charges against a millionaire bookmaker implicated in the murder of his wife.

Those bare facts allow us to breathe a bit easier. After all, a journalist shouldn't be above the law and law enforcement officials must have a great deal of latitude to investigate and prosecute crimes fully. But the details beyond those facts provoke a number of issues that test government officials' sensitivity to First Amendment rights and values.

Among the critical questions that arise from the details:

  • What is the definition of a journalist and who gets to fashion and enforce that definition?

  • To what extent can journalists thus defined be compelled to serve as an arm of the law?

  • When does aggressive prosecution of criminal suspects turn into harassment or vendettas against journalists?

More important, when press freedom and law enforcement priorities collide, which better serves democratic principles and interests: subjecting the First Amendment rights of the press to criminal sanctions, or compelling the government to exhaust its own formidable investigative resources before jailing an innocent civilian independently recording the process for the public?

Since the Watergate era, the Department of Justice has had in place a careful policy requiring federal prosecutors to get the approval of the U.S. attorney general before issuing a subpoena to or ordering the arrest of a journalist. The last time that happened was 10 years ago when four South Carolina journalists were jailed for eight hours for refusing to testify in the trial of a state senator.

In Leggett's case, federal officials may have thought they could finesse this policy because she didn't fit their definition of a journalist. Actually, her credentials are sound. She is working on a book. She was able to get a jailhouse interview with a murder suspect. She had published articles, including one appearing in a Department of Justice book. She had been in talks with several news organizations about an article on the sensational murder case. The FBI even offered to pay her to funnel her reporting to them.

Perhaps most interesting of all is that federal officials decided to go after Leggett instead of any one of several news organizations, including CBS's "48 Hours," that also have been investigating the case. True, Leggett had a taped interview with a key figure who later committed suicide while in jail. But federal prosecutors already have those tapes. Leggett turned them over to state authorities conducting the unsuccessful state prosecution in the murder case and they turned them over to their federal counterparts.

So what were federal officials trying to get from Leggett? They wanted all of her notes and tapes from the past four years. They didn't ask for copies only. They wanted originals, too. No doubt, they hoped to discover her confidential sources, including the local police, FBI agents and prosecutors she interviewed.

A particularly troubling aspect of all this is the secrecy and silence with which these events transpired. How easy it would have been for Vanessa Leggett to go off to jail without anyone's ever noticing. The grand jury proceedings were secret. Leggett's court appearances were closed to the public and press. The judge's order sending her to jail and the transcript of the proceedings were sealed. Even Leggett's appeal of the jailing order would have been conducted in a closed court if press attorneys had not successfully argued that enough was enough.

Through it all, federal officials have remained silent about the scope of the investigation, their reasons for seeking Leggett's materials and whether Attorney General John Ashcroft was involved in the decision to go after the writer and her material. If they thought no one would notice when they put the arm on an unknown writer with no backing from a large news organization, they no doubt are rethinking that assumption right about now.

The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the American Society of Newspapers and the Radio-Television News Directors Association filed a court brief on her behalf. More than two dozen news organizations, including the three networks, joined the legal effort. SPJ's Legal Defense Fund contributed $12,500 to her defense. Editorials have condemned Leggett's persecution. Rep. Sheila Jackson Lee, D-Texas, three international organizations and conservative activist Paul Weyrich, among others, have called on Ashcroft to end this fiasco.

There are good and sufficient reasons for Ashcroft to do so.

There is more at stake here than Vanessa Leggett's spending months in jail or being stripped of four years' worth of work. This action poses a much larger threat, and that is to the public accountability of government officials — which depends on an independent and unintimidated press.

The attorney general should measure the consequences of government co-option of the press carefully. Actions such as those taken against Leggett cannot help but chill journalists' speech, cut off their sources and compromise their credibility.

Then there is the message that we send around the world. As the Committee to Protect Journalists wrote: "By detaining Vanessa Leggett, the U.S. government is effectively reducing the stigma associated with the jailing of journalists. This sends exactly the wrong signal to authoritarian governments, who may now show even less restraint in using the state power to restrict press freedom."

Justice is about human decency, too, and there is something indecent about what federal prosecutors are doing to Vanessa Leggett. It may not be against the law, but it is a crime against decency and fairness, not to mention our democratic principles.

Our elected and appointed officials shouldn't count on the American public's remaining indifferent to that reality.

Vanessa Leggett isn't sitting in a federal detention center in downtown Houston just to protect her work or the American press. She fully recognizes the public's interest in not just seeing justice done but in seeing justice done justly.

"I am not a martyr, and I want to see justice done, but I am doing what I must to protect the public's interest in a free press," said Leggett "The public has a vital interest in a free and independent press."

Vanessa Leggett's lawyer, Mike DeGeurin of Houston, said in an interview with Christine Tatum, who chairs the SPJ Legal Defense Fund: "Here's the real kicker. They offered to make her a secret agent for the government. They wanted her to continue her research and work for the government by feeding information to the FBI. She felt that compromised her integrity and independence as a journalist, and she refused. It was shortly after she turned down that offer that she got this subpoena."

DeGeurin then added this disquieting comment:

"The question that's now in my mind is this: How many reporters and journalists are actually agents of the government? I wonder how many other journalists didn't tell them no."

His client did tell them no, and she's paying a heavy price for it.

On principle, she refused to use her status as a journalist to become an investigator for the FBI. On principle, she refused to turn over all of her research, originals and copies. On principle, she chose jail over compromising the work of other journalists and the information flowing to the public about the conduct of criminal prosecution. She has chosen to stay in jail as long as necessary rather than betray those principles.

We can only hope that Justice Department officials eventually will arrive at a similar commitment to the same principles.

Recent Ombudsman columns

  • Is the press guilty of treason?
    Many regard robust exercise of First Amendment rights by either the press or the people as a dangerous problem in the fight against terrorism.08.08.02

  • The Supreme Court's 'secondary' thoughts
    While Alameda Books ruling appears to bolster efforts to regulate adult businesses, several justices express concern that evolving secondary-effects doctrine threatens First Amendment.07.30.02

  • Putting corporate security before national security
    Government is asking private citizens to take on more responsibilities, but is considering bribing private businesses to enlist in war on terrorism.07.22.02

  • Congress must champion access
    Government information must be branded as crucial to democracy, to responsible governance and to freedom.07.11.02

  • Denial of access shushes the democratic dialogue
    Some restrictions are warranted to guard against attack, but as government demands more information of Americans, it's asking Americans to demand less information from government.12.12.01

Related

Federal appeals panel refuses to free jailed writer
‘This court takes a narrow view of the journalist's privilege in criminal cases, particularly in grand jury proceedings,’ says opinion.  08.20.01

Jailing of writer taints U.S. reputation, says international press advocate
Vanessa Leggett, jailed for refusing to surrender her notes about a Houston society murder, has spent more time behind bars than any other journalist in the United States.  10.04.01

Justice Department obtains reporter's home phone records
John Solomon’s May 4 story about Sen. Robert Torricelli may have prompted secret seizure of call records; press groups express outrage.  08.28.01

Jailed writer says loss of freedom more real to her since Sept. 11 attacks
‘It is just something that I have been resolved to endure each day for as long as it takes,’ says Vanessa Leggett.  10.10.01

Attorney for jailed Texas writer asks appeals court to grant bond
'Surely the Government has made its point that it can incarcerate ... journalists' for months, says Vanessa Leggett's lawyer.  11.06.01

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