Update: Judge Walter has lifted his order.
It’s a basic tenet of press freedom: news organizations may publish public documents they lawfully obtained even if they got those documents by mistake. And so editors at the Los Angeles Times thought they were on solid ground last week when they reported the details of a plea agreement reached between a corrupt police officer and a federal judge — even though the Times obtained that information because the government had accidentally uploaded the plea agreement to a public database.
Judge John Walter ordered the Times to remove parts of the article after a lawyer for the police officer, a narcotics detective named John Saro Balian, argued that his client’s life would be in danger. The Times complied, though its new celebrity editor, Norman Pearlstine, has vowed to fight. “There is sort of a constant effort to nibble away at the First Amendment,” Pearlstine told The New York Times, “and I think there is an obligation to respond to that and push back. Once it’s out in the public record, it is our decision to decide whether it is newsworthy and we should publish.”
Pearlstine was recently hired by the Times’ new billionaire owner, the surgeon Patrick Soon-Shiong, in the hopes of leading the paper back to greatness following years of budget cuts and chaotic ownership. Though highly regarded, Pearlstine some years ago found himself on the wrong side of a major First Amendment case. As editor-in-chief of Time Inc., Pearlstine turned over reporter Matthew Cooper’s notes in the Valerie Plame investigation, thus complying with a court order. (No, I am not going to rehash that morass of a story. If you want to know more, click here.) Pearlstine said he acted because Cooper’s source, George W. Bush chief operative Karl Rove, wasn’t truly confidential and because Time Inc. had already lost its legal appeal.
“Although we were ready to spend millions of dollars on litigation, I had to ask whether this strange case was the one on which we wanted to draw the line by ignoring a contempt order,” Pearlstine wrote in his 2007 memoir, “Off the Record,” quoted by Douglas McCollum in the Columbia Journalism Review.
This time, Pearlstine is on the side of the First Amendment angels. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way in a statement: “It is plainly unconstitutional for a court to order a news outlet to remove public information from an article it has published. It does not matter whether the information was placed in a court file by mistake.”
Judge Walter’s temporary restraining order is under appeal. The standard for such issues was defined in 1979 by Chief Justice Warren Burger, who wrote in the 1979 case of Smith v. Daily Mail Publishing Co. that “if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order.”
What’s taking place in Los Angeles is censorship, plain and simple. Walter’s order should be overturned as quickly and decisively as possible.
An experiment in public funding of news
Government funding of the media has long been regarded as toxic to journalism’s watchdog role. Public media organizations such as WGBH receive indirect funding through the Corporation for Public Broadcasting. Smaller nonprofit news projects like the New Haven Independent and Voice of San Diego receive subsidies by way of their tax-exempt status. But government officials do not decide what news gets covered.
New Jersey, though, is going to try something different. Its recently passed budget includes $5 million for local news initiatives. Donations are being sought as well. Yes, there is still some protection. According to the Associated Press, the money will be distributed by a nonprofit organization to be called the Civic Information Consortium, with a 15-member board comprising appointees chosen by elected officials as well as representatives of the state’s colleges and universities, the news media, and the public. The idea was developed by the Free Press Action Fund, part of the media-reform group Free Press, which has done yeoman’s work in educating the public about net neutrality.
Caught between the New York and Philadelphia media markets, New Jersey suffers from a paucity of news coverage. As described by the AP, members of a community with no coverage of their city government could ask the consortium for money to fund a reporter. The idea brushes right up against the wall separating journalism from government interference, although it seems that those involved have made a good-faith effort to maintain at least some semblance of independence.
Still, as Al Tompkins of the Poynter Institute told the AP, “When you start taking public money you have to start with the suspicion that at some point the system will be corrupted by power.” This is a worthwhile experiment, but it will have to be monitored closely.
Marcia Chambers, 1940-2018
A remarkable journalist left us last week. Marcia Chambers, a former New York Times reporter and editor who spent her so-called retirement running the Branford Eagle, the small community news site she launched, died at the age of 78. Chambers operated her site beneath the umbrella of the New Haven Independent, whose founder and editor, Paul Bass, paid tribute to her over the weekend.
I wrote about one of Chambers’ exploits in “The Wired City,” my 2013 book about new forms of online journalism. While the Independent was investigating the murder of a Yale graduate student named Annie Le, Chambers somehow obtained a 2003 police report about an ex-girlfriend of the suspect, Raymond Clark, who claimed he had forced her to have sex when they were both students at Branford High School. As a condition of receiving the report, Chambers promised not to publish it until after an arrest had been made. But that didn’t mean there were not other uses to which the report could be put.
The Independent’s Melissa Bailey typed the woman’s name into Facebook, discovered that she had an account, and friended her, letting her know she was a reporter covering the murder. After Clark’s arrest (he was later convicted), Bailey and Chambers wrote a story without using the woman’s name. “I can’t believe this is true,” they quoted the woman as writing on her Facebook page. “I feel like im 16 all over again. Its jsut bringing back everything.”
The revelation that the Independent had the police report created a media stampede, Bailey said later. “People were calling us, begging us for this police report,” she told a researcher for Columbia University. “The New York Times came in and practically tried to arm-wrestle Paul.” It was a triumph for Chambers — one of many in a long and productive career.
WGBH News contributor Dan Kennedy is the author of “The Return of the Moguls: How Jeff Bezos and John Henry Are Remaking Newspapers for the Twenty-First Century.”