Freedom of the Press Trumps Right to Privacy (and Secrecy)…

…as it should. Although there are legitimate reasons for claiming a right to privacy and its related torts in a case, in some instances the right to privacy is abused for political ends, as demonstrated by the controversy surrounding the Phoenix New Times.

This is a complicated case that actually builds on another one. The first case never actually went to trial—a special prosecutor, Wilenchik, was appointed to investigate the Phoenix New Times about the publication of a local sheriff’s home address (1). The Phoenix New Times had started investigating Sheriff Arpaio’s real-estate assets in 2004 and accused him of abusing a privacy law that allowed police officers to keep their addresses private (1). Sheriff Arpaio allegedly used the law to hide the true nature and value of his real-estate asset transactions. Offended at the Phoenix New Times’ publication of the sheriff’s home address, Wilenchik sought a subpoena from a grand jury demanding the Internet records of anyone who had visited the newspaper’s website (1).

Although this case never went to court because the County Attorney’s office eventually dropped all charges in relation to it, it nonetheless demonstrates the role of the First Amendment in preserving the media’s function as a watchdog. Freedom of the press protects the media from governmental censorship in the form of subsequent punishment. The media was serving as a watchdog in this case because it was exposing the morally questionable actions of a government official, the sheriff. The subsequent punishment the government, acting through the prosecutor, sought to impose was a subpoena of the newspaper’s records. The motivation to obtain this subpoena stems directly from the content of its publication, namely the home address of the sheriff. The subpoena itself constitutes subsequent punishment because it forces the newspaper to disclose the its private records, an action that would potentially damage the newspaper by implicating its readership through the guilty-by-association mentality. In other words, the special prosecutor’s motivation in obtaining the subpoena was to hinder the newspaper’s investigation of Sheriff Arpaio. “…the subpoena was part of an investigation orchestrated to get back at reporters and the critical stories they wrote about Arpaio, Thomas' political ally” (1). Thomas is the County Attorney, and his office oversees the special prosecutor.

This is a case in which freedom of the press would be considered more important than Arpaio’s right to privacy. Although Arpaio could have brought up the privacy tort of the public disclosure of private facts, his interest would have been overshadowed by the newsworthiness of the published information—that Arpaio, a trusted public official, was abusing the law. This parallels the court’s decision in Showler v. Harper’s Magazine Foundation, which disregarded Showler’s claim to the public disclosure of private facts in part due to the newsworthiness of the event—the funeral of the first Oklahoma National Guard member to be killed in Iraq, which even the governor of Ohio attended (2). As a reminder, this rationale is completely hypothetical because the case never got to court.

The most recent controversy surrounding the Arizona New Times, however, arises from the arrest of two of the newspaper’s executives, Larkin and Lacey, for the alleged disclosure of grand jury secrets (3). Larkin and Lacey had published the details of the subpoena, which included “information not only about the newspaper’s reporting, but also the information on readers who may have seen material deemed confidential published on the newspaper’s website, including the internet domain names and browsers used, and any other information about online readers of the publication since Jan. 1, 2004” (3). The irony here is that the newspaper is subpoenaed for the disclosure of private information because the newspaper itself disclosed private information about Sheriff Arpaio. Although Lacey and Larkin even acknowledged that disclosing grand jury secrets may have led to prosecution, they judged that the risk was worth it to keep the public informed about the details of the County Attorney office’s actions. Subsequently, public opinion and the State Bar Association sided with them that citizens have “the right to read whatever they want without government interference,” (1) thus pressuring the County Attorney to drop his charges. This case demonstrates the heightened importance of freedom of the press in acting as a checking function on government even though there may be security risks involved in leaking secret information. However, the paradoxical truth about the First Amendment is that it guarantees more safety and the triumph of Truth through the assumption of risk in letting all ideas be heard rather than suppressing information for temporary stability’s sake.

(2) (1)

http://www.azcentral.com/arizonarepublic/news/articles/1020newtimes1020.html

(2) (2) Helle, Steven. Journalism 199 Readings.

(3)(3) http://www.nytimes.com/2007/10/19/business/media/19cnd-arrest.html?_r=2&partner=rssnyt&emc=rss&oref=slogin&oref=slogin

Can Blogs Be Trusted?

How many people trust in the media as a reliable source of information? According to a poll by BBC, the majority of Americans still do: 59% (1). However, the amount of trust varies among different types of media. Americans had the least faith in blogs, which were trusted by only a fourth of those polled (1). This raises the obvious question of why there is so little trust in blogging and what remedies are present to make blogs more credible.

The nature of blogging itself may be conducive to reducing the credibility of blogs. For instance, Segan argues in his column (2) that the anonymity of the Internet results in less accountability, and therefore less incentive to be accurate. “It [Anonymity] dramatically lowers the reliability of Internet communication, as people can lie without real consequence” (2). Anonymous authors are free to post as much drivel as they want or even to post falsehoods, so there is no guarantee that any blog is reliable. This in turn reduces the public’s trust in blogs as a source of information.

As for the reliability of their sources, a case study demonstrates how easy it is to find questionable information on the Internet and present it as possible fact: Mickey Kaus repeats an allegation of infidelity on John Edwards’ part obtained from the tabloid The National Inquirer in his own Slate article (3). He is criticized by Megan Garber of the Columbia Journalism Review for passing on rumors that are unsubstantiated by fact and for sensationalistic blogging: “…for someone in Kaus’s position to pass along basically unsubstantiated rumors is, at best, annoying: it promotes the precise brand of character-driven political coverage most of us are sick of at this point” (4). If Kaus had stuck to reliable sources and presented an accurate portrayal of John Edwards, then political debate concerning presidential candidates would have been furthered more substantially.

So far there is no state involvement in blogging at all and the Internet is a free domain. But in order to increase the credibility of blogs, there would have to be governmental involvement to regulate blogging by creating standards for reliability, such as mandating that every blog must cite its sources. This would constitute an overextension of governmental power and even prior restraint, since there would have to be some method of punishing blogs that did not cite their sources. Practically, this would pose an enormous logistical problem as the government would have to monitor the vast domain of the Internet. And who wants the government to be the one setting the benchmarks for determining how reliable a blog is? This power could certainly be misused and infringe upon the checking function of the media, which includes citizen journalists who blog. Thus the blogger’s right to freedom of speech trumps any public right to know the blogger’s sources.

Furthermore, there is the precedent of Reno v. ACLU, which demonstrates that the Supreme Court is hesitant to regulate a forum in which there is no captive audience or scarce spectrum (5). The Court was not willing to cede the interests of the speakers to the interests of children, so it is doubtful that the Court will consider the public’s interest over the speaker’s interest in this case either. Furthermore, there is even less cause to uphold the public’s right to know because any regulation of blogs would cover all content, not just obscenity as in Reno v. ACLU.

Paramount, however, is that the theory of the marketplace of ideas triumphs in the end. Even if there are more spurious blogs than serious ones, the Internet is such a vast forum that the truth will eventually win out over all of the falsehoods present. The burden is not upon the speaker, the blogger, to provide the public with the truth. Speech does not have to be true to be protected, for truth is difficult to prove and it is human to err, knowingly or unknowingly. The burden is upon the public to sift through the available material and pinpoint ideas with the most credibility, a task that sounds daunting if it weren’t for the proliferation of search engines such as Google.

There are credible blogs out there, too, and one does not have to search far to find them (6).

Sources:

(1) (1) “BBC/Reuters/Media Center Poll: Trust in Media.” 3 May 2006. 18 Oct 2007. < http://www.globescan.com/news_archives/bbcreut.html>.

(2) (2) Segan, Sascha. “On the Web: Less Anonymity, More Privacy.” PC Magazine. 10 Oct 2007. 18 Oct 2007. < http://www.pcmag.com/article2/0,1759,2193392,00.asp>.

(3) (3) Kaus, Mickey. “Edwards Walks the Line.” Slate. 15 Oct 2007. 18 Oct 2007. <> .

(4) (4) Garber, Megan. “This is Huge!” Columbia Journalism Review. 11 Oct 2007. 18 Oct 2007. < http://www.cjr.org/campaign_desk/breaking_political_scandal_thi.php>.

(5) (5) Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). < http://www.law.cornell.edu/supct/html/96-511.ZS.html>.

(6) (6) Gimein, Mark. “Crack for Journalists: The Economics of Blogging.” Time. 13 Oct 2007. 18 Oct 2007. < http://time-blog.com/curious_capitalist/2007/10/crack_for_journalists_and_the.html>.

Tolerance Versus National Security Concerns in Relation to Freedom of Speech

Tolerance is one of the values taught by the First Amendment due to its counterintuitive nature. The First Amendment is paradoxical because it encompasses “a freedom to espouse no freedom, freedom for the speech we hate, a right to be wrong” (1). Yet it is the protection of speech that is hated by the majority of the people that is crucial to preserving democracy and a marketplace of ideas, while at the same time promoting tolerance for such extreme views. Tolerance in turn enables a diversity of views to be expressed. However, there may be a need to impose a limit on such tolerance if national security concerns are at issue, as is the case in allowing speakers like Ahmadinejad to express themselves. Is tolerance a sufficient justification for the overextension of freedom of speech protections to those who might pose a serious threat to America?

Mahmoud Ahmadinejad is the current President of Iran. Iran itself has been named as part of the “axis of evil” by President Bush due to its alleged desire to obtain nuclear weapons and its sponsoring of terrorist and insurgency groups (2). Ahmadinejad has been an extremely controversial leader and has supposedly made statements denying the Holocaust (3), but the most recent controversy surrounds his proclamation that Iran has no gay people (4). Yet it is not the content of his speech that is at issue. The question is whether those who provide a forum for his speech should be condemned as enablers of terrorism or defended as promoters of tolerance.

One of the major outlets for speech that is being denounced for tacitly supporting Ahmadinejad’s views by letting him express them is the media. Jonathon Feit criticizes the press for giving Ahmadinejad publicity but not examining his views critically. He scathingly condemns their silence: “Our country's greatest newswriters simultaneously put down their pens and said, ‘Well...can't seem to think of anything to counter that statement.’ No statistics, no cross-examination, nothing” (4). Journalists are supposed to investigate matters to ascertain the extent of their truthfulness, and in Feit’s view they have failed in this regard. Furthermore, he insinuates that the lack of denunciation by the media indicates their acceptance of his prejudice: “To be objective now, in the face of prejudice and hate, looks stupid. What's more, it smacks of complicity” (4). Although objective reporting is viewed as a positive trait that promotes a fair portrayal of all sides of controversial issues, at times subjectivity is necessary to avoid condoning heinous views. Passive observers who merely pass on the words of a leader hostile to the United States are worse than those who take no action because they are presenting his views uncritically to a wider audience.

Does all of this really matter, however? Ahmadinejad is not a United States citizen or even a resident alien, and technically cannot claim the First Amendment protections of the Constitution which are applied to citizens through the Fourteenth Amendment. There seemingly is no government involvement. Thus it should be easy to force the media to censor his speech, or at least to provide equal time for counterarguments to it.

But there are citizens and aliens who espouse views as inflammatory as his, and his case can therefore be considered as representative of letting speakers like him express themselves in public forums. Regardless of whether or not speakers are protected by the First Amendment, though, there would still be government involvement in dictating to the media whose speech should be allowed or banned. Banning the publishing of Ahmadinejad’s views in the press would constitute prior restraint and even mandating that equal time be given to opposing views would infringe on their right to editorial discretion.

The paramount issue, however, is whether national security concerns trump freedom of speech and tolerance. Security is an exception to the First Amendment protections on speech, after all. But consider the context in which Ahmadinejad’s speech is considered dangerous. He is a threat because of his anti-American views and support of terrorism. However, the war on terrorism can be construed as a perpetual war and in the light of that interpretation, the government can have an unlimited license to censor the publication of the views of any supposedly pro-terrorism speaker (2). This situation grants the government frighteningly unrestrained power to quash any sentiments it defines as “pro-terrorist.” No national security concern is great enough to endanger freedom of speech in this way.

While tolerating Ahmadinejad’s beliefs or the views of those like him can ironically be seen as a promotion of hate, upholding the values of the First Amendment has more than a civil libertarian value in these instances. The irony that America will allow him its freedom of speech while he denies that same right to his own people gives America the higher moral ground in world opinion. Iran’s people may tire of his oppressive fundamentalist regime and look to America for guidance instead, voiding any national security concerns in the first place.

Sources:

(1) (1) Helle, Steven. “Prior Restraint in the Supreme Court.” Journalism 199 text, pg.49.

(2) (2)“Axis of Evil.” Wikipedia: The Free Encyclopedia. 11 Oct 2007. < http://en.wikipedia.org/wiki/Axis_of_evil>.

(3) (3)“Mahmoud Ahmadinejad.” Wikipedia: The Free Encyclopedia. 11 Oct 2007. < http://en.wikipedia.org/wiki/Ahmadinejad#Holocaust_denial_and_accusations_of_antisemitism >.

(4) (4)Feit, Jonathon. “Should There be Limits to ‘Diversity’ of Speech?” Advertising Age. 11 Oct 2007. .

Media Objectivity and First Amendment Rights

Media Objectivity and First Amendment Rights

The ideal that objectivity is a standard that media should be held up to has been embraced by an American society suspect of sensationalism and other media excesses. However, too much emphasis on maintaining objectivity stifles free speech if all content must meet some arbitrary standard of fairness. This is especially true in the political arena, where free speech fosters the necessary debate to inform citizens of all sides of the salient issues before elections. The media is endangered by business and governmental elite who would prefer that it have no say at all than to have it express any partisan views freely.

Communications businesses such as Verizon Wireless demonstrated on Friday September 28^th that they have an inordinate amount of control over free speech in the services that they provide to consumers. Verizon Wireless controversially turned down the request of NARAL Pro-Choice America, an abortion rights group, for a text-messaging privilege that would give voluntary users a short cut to get updates (“NARAL’s case…”). Verizon’s reasoning was that it did not wish to offend anyone by seeming to support partisan views: “its messaging system was closed to groups with content or an agenda that ‘may be seen as controversial or unsavory to any of our users’ “(“NARAL’s case…”) Even though it eventually reversed its decision on NARAL (Liptak), the fact remains that Verizon had attempted to stifle free speech on an inconveniently controversial topic in order to keep the content of the communications it provides objective.

Although Verizon Wireless is a private company and First Amendment cases must involve government in order to be valid, the actions of Verizon Wireless would constitute content regulation and a violation of the First Amendment if it were a governmental entity. Text messaging is not traditional media, but it provides a form of new media in which individuals and partisan groups can express their perspectives and foster political debate. The dangerous precedent Verizon set by attempting to suppress it could open the door to possible government involvement and limitation of biased, partisan speech for the sake of impartiality. Such possibilities include “Net neutrality” rules, which “would bar Internet access providers [like Verizon] from favoring or blocking any legal content, application or service” (“NARAL’s case…”) It is just to have rules against overregulation of content, but why should partiality be condemned? Verizon opposes “Net neutrality” rules ostensibly because it wants to be able to favor content that it supports; its actions in the NARAL case ironically imply more sinister motives.

In dealing with traditional media, the government has sought to impose “fair” rules in order that both political parties may have equal representation in the media. The most recent law that applies to the media is the McCain-Feingold Act of 2002, which regulates the financing of political campaigns (“Bipartisan Campaign Reform Act”). The relevant clause deals with partisan issue ads, and states that corporations are prohibited from paying for an ad that mentions a candidate’s name (“Bipartisan Campaign Reform Act”). Corporations include the media, which are technically not allowed to sponsor any ad that takes a biased stance on a controversial issue, but are allowed to express their opinions on issues and even endorse candidates, ironically enough. Although the New York Times has supported the expansion of campaign finance laws in the past out of concern for possible corruption in the campaigning process, it has found itself targeted by the Federal Election Commission under the McCain-Feingold Act. The New York Times has been accused of a violation for giving the radical leftist group MoveOn.org a special discount for an ad it displayed “accusing General David Petraeus of betrayal in advance of his Congressional testimony” (“In defense…”) Whether or not the FEC will prosecute the New York Times for a violation is under investigation still since no political candidate has been expressly named. Nevertheless, the New York Times has come under great scrutiny for supporting a partisan group and this case highlights the dangers of overbroad campaign finance laws that can lead to regulation of free speech. Although the speech under question is an advertisement, the Supreme Court has ruled before in cases where the content of advertisements was regulated that political speech in commercial form is protected (See New York Times Co. v. Sullivan). The New York Times should not be prohibited from supporting a viewpoint that it endorses, since it is already free to have a liberal bias in its content under First Amendment protection.

The First Amendment does not protect only inoffensive, unbiased speech; otherwise there would be no need for a First Amendment. Thus the right of the media to be as partisan as it wants must be protected from interests that would rather have no debate than a free exchange of ideas.