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People think press too free; government only too happy to make it less so

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center

08.09.99

To the amazement of people living elsewhere, the majority of Americans think that our press is too free. More ominously, a goodly number of police, judges and political leaders who should know better pander to that attitude by harassing journalists and restricting their efforts to keep the public apprised of what the officials are up to.

It is a phenomenon for which there is all too much evidence. Consider this, for example:

In Santa Cruz County, Calif., Juvenile Court Judge Kathleen Akao charged reporter Robin Musitelli with contempt for telling the dramatic story of parents who had their infant taken from them by the court. For good measure, the father who talked to the newspaper reporter was charged with contempt, too.

It gets worse: Superior Court Judge Samuel Stevens, appointed to preside over the contempt charges, closed all legal proceedings in the case to the public and the press. In other words, the newspaper whose reporter was at risk of jail and fine couldn't cover the case.

At last report, the case was bogged down while county supervisors debated whether the county attorney's office could prosecute the case since the charges were leveled, not by a prosecutor, but by a judge.

But this is about more than jurisdiction and authority. It's also about judicial secrecy and hubris that translate into harassment and delay of legitimate newsgathering activities that keep the public informed.

There are more examples like this one.

  • The California Supreme Court ruled late last month that the transcript of a grand jury's inquiry into Merrill Lynch's connection with Orange County's bankruptcy would not be made public. That decision obstructs public and press efforts to determine whether the county acted responsibly in halting an investigation after the investment firm paid officials $30 million.

  • Riverside County, Calif., deputies seized a journalist's videotape as "evidence" after he recorded the killing of the fleeing driver after a 120-mile road chase by officers. Eden Dankowski charges in a lawsuit against the sheriff's office that the news value of the tape was ruined by delay, that deputies twisted his arm in forcing him to release the tape, that they kept him from leaving the scene, and that they illegally made a copy of the tape before returning it.

  • In New York last week, state police refused to take down from their Web site news photos of possible illicit activities at Woodstock 99. Several news organizations pointed out to Gov. George Pataki that the action not only violates copyright law but also compromises journalists' ability to do their job by making it appear that they are an arm of the law.

  • New York City officials finally agreed to abandon tactics that have prevented reporters and photographers from effectively covering major events in the city for some time. Those practices included keeping reporters and photographers in a "press pen" frequently farther from a news event than the public and blocking videotaping and photography of news events in public places.

  • In Chicago, city officials had reverted to the "Red Squad" practices of several decades ago, when city employees were used to eavesdrop on conversations between journalists and city officials. Last week, the ACLU asked a judge to order Mayor Richard Daley to stop the spying by enforcing a 1981 consent decree against the city.

  • In Salamanca, N.Y., City Court Judge William Mountain refused to release the transcript of a preliminary hearing in a murder case, instead opening up from the bench with a stream of invective against the press, accusing it of causing the Jonesboro and Littleton school shootings.

    • There you have it, or more correctly, there you have some of it. Officers of the law deliberately and unnecessarily interfere with the right of the press to report on events of significance to the community. Judges charge reporters for getting the story right, close official proceedings, seal records of those proceedings, and blame the news media for being complicit in the heinous acts of disturbed individuals. City officials try to control the flow of information and to intimidate reporters and their sources by spying on their conversations.

    Rather than being outraged, many citizens applaud such constitutional recklessness because it appears to be targeting the press — as if the press could be punished without the public's being deprived of vital information.

    Back to that Santa Cruz case. "I think it's absolutely crazy that a father can't complain about his baby being taken away," said reporter Robin Musitelli. "If parents can't question a system that has taken their child, who can?"

    If those parents can't go to the press when they think the judicial system has failed them, where can they go?

    If journalists can't confront the charges against them in open court, then what happens to the whole idea of public justice?

    And about the majority who believe the press has too much freedom: Obviously those people are focusing on a seemingly endless supply of failures and missteps by the press. They fail to take into consideration the equally endless supply of great journalism that gets committed every day in news operations large and small across this land.

    There are countless examples of the press drawing attention to public and private corruption and incompetence, of helping to right wrongs, of providing perspective and context, of providing us the information we must have to live our daily lives and to serve as good citizens. To do so, many of them routinely risk harassment from police, jail and fines from the courts, and ridicule and worse from the public they serve.

    In fact, what people are saying when they say the press has too much freedom is, "Stop us before we know too much."

    They are far too eager to give away freedoms that they think belong to someone else, namely journalists and their bosses. They are wrong, of course. Freedom of the press is the people's freedom, not the journalists' and certainly not the government's.

    The public must do a better job of attending to that freedom. Right now, the press and the government are failing miserably, the one by too-infrequent attempts to defend its First Amendment franchise, and the other by all-too-frequent attempts to shut it out, shut it up and shut it down.

    Paul McMasters can be contacted at pmcmasters@freedomforum.org.