Journalists and the law

[Skwinty]

Nothing in the material posted suggests that anything other than the identity of the source is protected.

From the quote in the post.

"While two states – Alabama and Pennsylvania – provide absolute privilege, the other shield laws provide a qualified privilege, sometimes including materials and sources, sometimes sources only,

My point is that journalists are privileged legally when it comes to the material and source of their publications.

When I look at the cases of journalists charged and convicted of hacking, none seem to be in the public interest.

Of course my interest in this subject is limited to what happens in South Africa and we could benefit from having a public interest defence for journalists.

 

[GeeMack]

From the quote in the post.

"While two states -- Alabama and Pennsylvania -- provide absolute privilege, the other shield laws provide a qualified privilege, sometimes including materials and sources, sometimes sources only,

My point is that journalists are privileged legally when it comes to the material and source of their publications.

Nothing there suggests an exception for journalists when it comes to committing a crime to obtain the material.

When I look at the cases of journalists charged and convicted of hacking, none seem to be in the public interest.

Of course my interest in this subject is limited to what happens in South Africa and we could benefit from having a public interest defence for journalists.

In the US it is a crime for a journalist to hack email, tap a phone, or bug an office to obtain information. Depending on the particular jurisdiction where the crime is committed, where the phone, computer, or office is located, and the type of information obtained, those crimes could be subject to as much as a million dollar fine and/or 30 years in prison. Also, the information obtained wouldn't be acceptable as evidence because we're protected by the Fourth Amendment to our Constitution. No objective argument has been made yet to suggest it should be otherwise.

 

[theprestige]

So the more I think about it, the more I think there are actually two separate issues being discussed here:

One, whether "journalists" comprise an elite class of citizens with special legal exemptions or extralegal privileges not enjoyed by other citizens.

And two, whether there is some set of exemptions or privileges, commonly ascribed to journalists, that actually are--or should be--enjoyed by all citizens.

On the first question, my opinion is "absolutely not". Short of joining one of the actual investigative or enforcement agencies of the government, and submitting to its regulations and oversight, I don't think there's anything journalists can do that sets them above their fellow citizens in the eyes of the law.

On the second question, my opinion is, "certainly". I don't see anything in Nessie's journalistic code of conduct that wouldn't be equally acceptable to me when applied to any private citizen exercising their right to a free press. Likewise with Skwinty's shield laws.

 

[theprestige]

A cracking post which sadly will go over the heads of many here who have no understanding of journalism and freedom of the press.

Maybe it's different in the UK, but in the US, "freedom of the press" refers to the inalienable right of every citizen (not just "journalists") to freely publish whatever ideas and information they wish.

In the context of American freedom of the press, the only practical difference between a journalist and any other private citizen is that the journalist is trying to get paid to exercise that freedom.

Is it different in the UK? Is the freedom of the press there enjoyed only by the owners of the Daily Mail?

 

[Nessie]

I'm glad our journalists actually have to abide by the law. Journalist impunity is just not smart.

I'm glad our journalists are able in extreme circumstances able to break minor laws to report important stories that are in the public interest.

 

[theprestige]

As a journalist, I'd say the difference is that I have a degree in journalism, which includes training in proper ethics and relevant laws. I also understand the proper way to go about documenting an event in a manner that promotes an accurate depiction and minimizes the influence of any personal bias.

Everyone seems to think that anyone can do what a journalist does. I disagree.

I don't think that any layman can do journalism as well as a trained journalist. I do, however, think that every citizen enjoys the same freedom of the press, regardless of whether or not they're a trained journalist.

Speaking of your journalism degree: Did your curriculum include instruction in the special legal privileges enjoyed only by graduates of the program, or only by employees of a major media outlet, or anything like that?

 

[Nessie]

The personal attack is, as always, irrelevant.

It was a descriptive of your argument, not a personal attack.

If discussing the law in the US, there are several things incorrect there.

I was referring to journalists in the UK, so nothing was incorrect.

In the United States a journalist has the same legal authority as an electronics engineer, a school teacher, a car rental agent, a garbage man, and even a heroin dealer. There are no special powers endowed because of "a greater degree of investigating, research, and fact checking than your average person". I am not currently a journalist in a professional capacity, but it is fairly certain that I do "a greater degree of investigating, research, and fact checking than your average person", and likely a greater degree than many professional journalists. I know librarians, tractor designers, dentists, and a ballet instructor who meet those criteria.

Your opinion without any evidence.

To suggest a journalist should be afforded some kind of legal leeway based on that subjective criteria is simply ludicrous. It is, of course, an argument based on the fallacy of special pleading, which means it fails.

It is not special pleading when there is a good reason. Freedom of the press and their investigations not being hamstrung by minor laws when there is a case of public interest is the justification for making them a special case.

http://rationalwiki.org/wiki/Special_pleading

"While this is acceptable in genuine special cases, it becomes a formal fallacy when a person doesn't adequately justify why the case is special."

 

[Skwinty]

In the US it is a crime for a journalist to hack email, tap a phone, or bug an office to obtain information.

I am not arguing otherwise.

What I am arguing is that there are circumstances where a journalist should be able to have public interest as a defence.

Obviously, there needs to be a public interest test. The CPS in the UK have declined prosecuting a journalist for hacking emails due to public interest.

Also, as Dene Smuts of the DA in South Africa has said, It's only a defence and if the journalist is wrong, then send them to prison.

http://www.guardian.co.uk/media/2013/mar/18/sky-news-reporter-cleared-canoe-man-hacking

Sky News correspondent Gerard Tubb will not face prosecution for hacking the email account of "canoe man" John Darwin, the Crown Prosecution Service (CPS) has announced.

 

[Nessie]

Why not apply this to all citizens? Do you not think any citizen that abides by the code and can show public interest should have the same freedom?

Why not let any old citizen, without training, proper authorisation, code of conduct or other regulation become a teacher?

Being allowed a degree of leeway under the law when something is in the public interest is not a power to be granted to any old person.

In the same way that a citizen who has information about a crime should go to the police and not turn vigilante, a citizen who has a story should go to the press. Or they should join the police or become a journalist.

 

[GeeMack]

It is not special pleading when there is a good reason. Freedom of the press and their investigations not being hamstrung by minor laws when there is a case of public interest is the justification for making them a special case.

The entirely subjective criteria that "there is a good reason" makes it special pleading. Unless, of course, anyone's opinion of what qualifies as "a good reason" is as acceptable as any other. Fortunately in the US we don't typically advocate for exceptions to be applied to the law based on that sort of anything-goes opinion.

 

[Skwinty]

On the second question, my opinion is, "certainly". I don't see anything in Nessie's journalistic code of conduct that wouldn't be equally acceptable to me when applied to any private citizen exercising their right to a free press. Likewise with Skwinty's shield laws.

The public interest defence being proposed in South Africa would apply to citizens as well as journalists.


http://mg.co.za/article/2011-08-31-the-info-bill-is-antidemocratic

"The Mail & Guardian‘s editor-in-chief Nic Dawes said a public interest defence would protect not just journalists, but anyone who exposed serious misconduct such human rights violations, corruption and mismanagement."

 

[Nessie]

Maybe it's different in the UK, but in the US, "freedom of the press" refers to the inalienable right of every citizen (not just "journalists") to freely publish whatever ideas and information they wish.

In the context of American freedom of the press, the only practical difference between a journalist and any other private citizen is that the journalist is trying to get paid to exercise that freedom.

Is it different in the UK? Is the freedom of the press there enjoyed only by the owners of the Daily Mail?

We have free speech and freedom of the press as separate. Free speech does not grant you certain journalistic privileges. But, there is more blurring of the line between journalist and citizen now, due to the internet and bloggers and similar who act like the press. It will be interesting to see what happens if a blogger who has their own news output breaks a law to get a story that is clearly in the public interest.

 

[Nessie]

The entirely subjective criteria that "there is a good reason" makes it special pleading. Unless, of course, anyone's opinion of what qualifies as "a good reason" is as acceptable as any other. Fortunately in the US we don't typically advocate for exceptions to be applied to the law based on that sort of anything-goes opinion.

Which is purely your opinion, so it does not make for a reasonable argument.

Skwinty put it very well by saying that the press have a defence under the law of public interest. I take it that in the USA there is no such defence and your press is not as free as ours to act in the public interest.

 

[Dancing David]

If the journalist uncovered an illegal gun running operation by hacking your e-mail, neither you nor I would have that much to complain about. Especially if it could be shown that without such the gun running operation would have remained undetected.

I disagree, with a proper warrant, that is fine, but citizens violating each other's privacy without a warrant, I have a problem with that.

Now publicly available, digging through trash cans those are acceptable.

 

[theprestige]

We have free speech and freedom of the press as separate. Free speech does not grant you certain journalistic privileges.

Which specific privileges?

What specific laws or regulations spell out what specific privileges are enjoyed by journalists?

What specific laws or regulations spell out what a citizen must do to to qualify for those specific privileges?

But, there is more blurring of the line between journalist and citizen now, due to the internet and bloggers and similar who act like the press. It will be interesting to see what happens if a blogger who has their own news output breaks a law to get a story that is clearly in the public interest.

In the US, this question is already settled: the blogger has the same freedom of the press as the publisher of the New York Times.

Skwinty put it very well by saying that the press have a defence under the law of public interest. I take it that in the USA there is no such defence and your press is not as free as ours to act in the public interest.

Have you considered the possibility in the US there is such a defense, and that it applies equally to every citizen, not just journalists?

 

[theprestige]

Why not let any old citizen, without training, proper authorisation, code of conduct or other regulation become a teacher?

Well, there is home schooling... But why not, indeed?

In fact, there are private citizens all over the place who teach all kinds of things, with a diverse array of qualifications ranging from "formally accredited subject-matter expert" to "total ignoramus and/or confidence trickster".

Some teachers get special authorizations, etc. because they're trying to meet specific government requirements. The government has gotten directly involved in the education of minors, so anyone who wants to educate minors to the government standards has to comply with the government's regulations.

Is that your vision for journalists? That the government will get directly involved in the gathering and publication of information by private citizens, and that citizens who want to investigate and publish to government standards must comply with government regulations?

ETA: I can't believe I almost overlooked private tutoring. This is actually an interesting comparison. When government-appointed teachers fall short of their goals, private citizens sometimes take matters into their own hands, offering and engaging private tutoring services. These are independent citizens, with no special training or sanction or privilege before the law, adopting the role of teacher. They have no accreditation, no regulation, and answer to no one but their clients and the taxman. Some tutors make a business of it, with offices and fancy letterhead and maybe even a board of directors and a code of conduct. But none of those business trappings change the fundamental facts: Anyone can be a tutor, and every tutor enjoys the same standing before the law.

 

[Dancing David]

If the state wishes to hide it's wrong doings from the public eye, then yes, the media can be excused for a reasonable number of transgressions of the law.

And this is where us USers have a different perception, but one taht supports what you are saying. The government is of the people, the only exception is 'national security interest' and to a lesser extent 'undercover operation', other wise all data is technically the public's and therefore open to scrutiny, now the FOIA does have some provision issues, but it is often effective.

However there is no exclusion for whistle blowers, they can loose their jobs and then have to sue for damages.

 

[Nessie]

Which specific privileges?

What specific laws or regulations spell out what specific privileges are enjoyed by journalists?

What specific laws or regulations spell out what a citizen must do to to qualify for those specific privileges?

There is no specific journalism law, instead there have been legal rulings on specific events such as the earlier case of hacking being ruled as in the public interest

http://www.guardian.co.uk/media/2013/mar/18/sky-news-reporter-cleared-canoe-man-hacking

In the US, this question is already settled: the blogger has the same freedom of the press as the publisher of the New York Times.


Have you considered the possibility in the US there is such a defense, and that it applies equally to every citizen, not just journalists?

If that is the case, why have you been arguing journalists should not be "an elite class of citizens with special legal exemptions or extralegal privileges"?

 

[Nessie]

Well, there is home schooling... But why not, indeed?

In fact, there are private citizens all over the place who teach all kinds of things, with a diverse array of qualifications ranging from "formally accredited subject-matter expert" to "total ignoramus and/or confidence trickster".

Some teachers get special authorizations, etc. because they're trying to meet specific government requirements. The government has gotten directly involved in the education of minors, so anyone who wants to educate minors to the government standards has to comply with the government's regulations.

Is that your vision for journalists? That the government will get directly involved in the gathering and publication of information by private citizens, and that citizens who want to investigate and publish to government standards must comply with government regulations?

You are missing my point that many jobs come with certain privileges that can only be had if you get that job and to get that job you need to pass certain requirements. By that I mean, for example, the difference between the police and private detectives. PIs cannot pass themselves off as police officers and they do not have the privileges the police do.

I think we are arguing past each other now as I think of journalists as trained professionals who with the regulated job get certain privileges, like the police. You think of any old person who wants to call them self a journalist as a journalist, like a PI who poses and acts like the police.

 

[triforcharity]

I'm glad our journalists are able in extreme circumstances able to break minor laws to report important stories that are in the public interest.

You consider burglary and computer fraud minor? WTF is wrong with the UK justice system?