Too Late For The Bail, Bondsmen
The reporters who broke the Barry Bonds steroids story (allegations) have been sentenced to 18(!) months in prison for contempt of court for failing to name the person who leaked grand jury testimony to them.
I'm not an expert in this (I'm not much of an expert in anything, really), but this strikes me as an absurd result. I mean, people can out a CIA agent and do less time. And these journalists aren't accused of leaking the information themselves -- they just published parts of the testimony after it was leaked to them, and then refused to cooperate with the investigation to find the leaker.
I don't know, I don't really have time to make a really cogent case -- I'll leave it to the commenters to do that -- but something about the whole situation seems a bit outrageous. Maybe it's because the contempt charge is being used so overtly as a coercive measure:
Because that's what government and the judiciary should do. Threaten to imprison a person for a year and a half if they don't inform on their neighors (Hey, why not five? Damn sentencing maximums! getting in the way of dispensing justice, just like the Geneva Conventions!). Sounds like we've got our priorities in line, right Your Honor?
OK, rant over.
Update: Sports reporter Mike Lupica makes some similar points.
I'm not an expert in this (I'm not much of an expert in anything, really), but this strikes me as an absurd result. I mean, people can out a CIA agent and do less time. And these journalists aren't accused of leaking the information themselves -- they just published parts of the testimony after it was leaked to them, and then refused to cooperate with the investigation to find the leaker.
I don't know, I don't really have time to make a really cogent case -- I'll leave it to the commenters to do that -- but something about the whole situation seems a bit outrageous. Maybe it's because the contempt charge is being used so overtly as a coercive measure:
U.S. District Judge Jeffrey White rejected the reporters' request for simply a monetary fine, or even house arrest, saying that prison time would best compel them to testify before the grand jury investigating the leak.
"The court is hopeful that perhaps they'll reconsider their position when faced with the reality of incarceration," White said.
Because that's what government and the judiciary should do. Threaten to imprison a person for a year and a half if they don't inform on their neighors (Hey, why not five? Damn sentencing maximums! getting in the way of dispensing justice, just like the Geneva Conventions!). Sounds like we've got our priorities in line, right Your Honor?
OK, rant over.
Update: Sports reporter Mike Lupica makes some similar points.
posted by Anonymous at 8:00 AM
35 Comments:
Yet another example of the vanishingly small amount of respect freedom of the press gets in this country. Americans don't know anything (and thus vote for people like Bush and Schwarzenegger) because the media is not fulfilling its role. On the one side we have government spying on journalists (apparently companies are doing that one too), incarcerating journalists and doing everything else they can do to create a compliant, pro-whatever-the-government wants to do press. On the other side, rollback of media ownership rules and other protections has led to increasing consolidation and corporatization of mass media in America, which in turns leads to journalists who are more likely to parrot the corporate or government agenda and who are less likely to take risks or do real investigative reporting.
This state of affairs is awful for many reasons but the most striking is the negative impact it has on democracy and the free flow of information and ideas on which it depends. It's no wonder our society is falling apart.
I think there are really two seperate issues here, one is the contempt power and one is forcing reporters to disclose sources. The contempt issue is straight forward, civil contempt is meant to be coercive. In fact, if it was punative, it would be reversible and they could be let out. The sources is the more interesting issue, but the real question is where to draw the line. Absolute immunity seems too far, but anything else seems difficult to adjudicate.
FYI- Here's another one: http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/09/22/BAGB6LAV0817.DTL. Oddly enough from the same courthouse, but different Judge.
Tacitus, your take on this is overblown. Somebody committed a crime by leaking sealed grand jury testimony. They're the one's the court is after. You don't get away with concealing a crime after the fact merely because you're a journalist, and it's not "informing" in the sense of dropping the dime, either. If you think the press's First Amendment interest is greater than the defendants' right to a fair, unbiased trial, you can get to petitioning to amend the Constitution. Good friggin luck.
The first commenter is deluded. The sky is not falling, in case you hadn't noticed. We have more content than we know what to do with, consolidation notwithstanding. The problem is that we consciously ignore other viewpoints and claim anyone who thinks otherwise is an idiot (your post is a sterling example). Here, the reporters' decision to publish, whether right or wrong, shows that the press still has cojones.
"You don't get away with concealing a crime after the fact merely because you're a journalist..."
There's a difference between actively concealing a crime, and refusing to expose the criminal.
For example, if you saw someone commit a crime, you have no duty to go to the police and report them. But if you hide or destory the evidence, then you're acting illegally.
Society seems to think this is morally acceptable, so why should a government subpoena change the moral calculus?
"and it's not "informing" in the sense of dropping the dime, either."
Isn't it? What's the difference?
" If you think the press's First Amendment interest is greater than the defendants' right to a fair, unbiased trial, you can get to petitioning to amend the Constitution."
I don't understand this statement. The text of the First Amendment isn't clear one way or the other on this point. If anything, it explicitly protects the freedom "of the press", so it seems to lean in favor of the reporter.
"The first commenter is deluded. The sky is not falling, in case you hadn't noticed."
How do you know? How can you be sure there aren't extremely important stories going unreported because the reporter is afraid of exactly this outcome?
"Here, the reporters' decision to publish, whether right or wrong, shows that the press still has cojones."
What makes you think this reporter is representative of "the press" in general?
There's a difference between actively concealing a crime, and refusing to expose the criminal.
For example, if you saw someone commit a crime, you have no duty to go to the police and report them. But if you hide or destory the evidence, then you're acting illegally.
Society seems to think this is morally acceptable, so why should a government subpoena change the moral calculus?
This is just juvenile at best. Are you kidding me? There would not be a justice system but for the power of the government to compel testimony. Why not just have the cops say what happened in every criminal case and get it over with? How about we duel to settle civil disputes? Why should a subpoena change the moral calculus? Was that rhetorical?
Going back to your example, if you refused to cooporate with the cops who investigate the crime, you're obstructing justice. And if the defendant calls you to testify and you refuse to talk about what you saw, yeah, your ass better get ready to spend time in prison. I'm still shocked that anyone is seriously questioning the merits behind the power of a court to issue a subpoena. Maybe we should have a system where certain classes of citizens with *eh hem* certain titles are just too privileged to go to court? We can call them reporters.
But that's all normative. Even putting all that aside, there are now "Good Samaritan" laws that require mandatory reporting of certain crimes. We can thank a certain Cal alumnus for that one.
"Going back to your example, if you refused to cooporate with the cops who investigate the crime, you're obstructing justice."
Huh?? Um... I don't think so. Look up the statutes defining obstruction of justice some time.
"Even putting all that aside, there are now "Good Samaritan" laws that require mandatory reporting of certain crimes."
They're extremely limited in scope, and probably a minority of states have adopted them.
Therefore subpoenas mean nothing? What is this Monty Python?
"Therefore subpoenas mean nothing?"
I don't believe anyone here has set forth that position.
Did you look up any statutes governing obstruction of justice?
I'll grant you the ob. justice point. You win. But you're still stuck with saying that subpoenas don't change the moral calculus about revealing what a person knows. There's two years of stuff that I've said...you want to challenge the accuracy of any of those?
7:01 / 7:17 / 7:40, Look up 18 USC 4.
Wow, people really care about this issue!
What I find most ironic about it is that the reporters are presumably protecting one of the prosecutors (or perhaps one of the grand jury witnesses). If the defendants wanted to talk about it, they're free to do so. So we have a situation of prosecutors imprisoning reporters to hunt down bad prosecutors.
But the real difficult issue here about freedom of the press is: does the press have an unmitigated freedom to publish information that is legally secret? I think that's what divides people on this one. As one commenter points out, grand jury proceedings are supposed to be absolutely secret to protect the non-yet-defendant's right to a fair trial. That's why only the defendant has the power to publicize the proceedings.
This Barry Bonds situation perfectly epitmoizes why we have these protections. Has any court anywhere convicted Bonds of anything illegal? No. Has he even been charged? No. This is precisely why we have a presumption of innocence, but you can imagine what good it would do him now were he ever charged.
To build the space of possible analogies, freedom of the press gets dinged in a number of ways. I doubt anyone would argue that a newspaper could publish trade secrets that it obtained from a breach of confidence (i.e., in the same way they obtain grand jury testimony). The newspaper would be liable for misappropriation. Whether they could be enjoined pre-publication is the "nice question" or prior restraint, but I have a hunch they could be enjoined on this one based on how the times and court have changed.
So - I hope that adds some grist for the conversation.
Tom: I don't see why you assume it is either the prosecutor or a witness. It seems most likely that it was a grand juror that leaked it. It also could have been the court reporter.
To me, the problem isn't so much the lack of legal protection for the press, or the subpoena power, but the use of prosecutorial discretion. The reporters seem to me (and to espn readers!) to have gotten a raw deal. And as the original post pointed out, other "leakers" have gotten off scot free for behavior that seems worse. I think that is the troubling juxtaposition here.
"Look up 18 USC 4."
I know about misprision -- it requires concealment. Simply refusing to cooperate with law enforcementisn't enough.
"But you're still stuck with saying that subpoenas don't change the moral calculus about revealing what a person knows."
Actually, I asked a question about it, and it wasn't meant to be entirely rhetorical. But you didn't really try to answer it, even. So let's.
Assuming we're OK with not having a duty to report crimes, why should a subpoena make any difference? (And let's keep in mind that what we're really talking about is not the subpoena per se, but rather the power to imprison someone indefinitely for refusing to answer certain questions.)
I can think of a couple differences, but I don't really find them ultimately persuasive, at least not in the reporter context:
The main differences are that the power of contempt comes from a court, not a police officer, and that a subpoena requires a great showing of need than do random questions from a cop. Also, a subpoena can be quashed if contested successfully.
So that makes it somewhat more justified than penalties for failing to report a crime or cooperate with a police officer I guess.
But when balanced against the potential chilling effect, I don't think it's enough.
You seem to think the system of justice would fall apart if not for a court's power of contempt. I seriously doubt it though, because I just don't think the resulting kind of evidence is so incredibly critical. I have a hard time thinking of a lot of big cases that swung to the other side because of someone's compelled testimony. (I'll reconsider if you can name more than a handful.)
But I've heard a number of reporters lately say they know firsthand of national stories that are going unreported because of reporters' fears of jailing or sources' fear of exposure, and how reporting has been made so much more difficult because of the recent increase in contempt enforcement. (E.g. WaPo reporter Dana Priest talked about it at Zellerbach last week.)
You seem not to have considered that consequence, or at least you haven't said why it doesn't matter to you.
Stop and think about the tactics used by the Bush administration, and how critical secrecy has to the implementation of their various plans. Then ask yourself whether we really want to hamstring the press in such a fashion at this particular juncture in history.
^BTW, by "compelled testimony", I mean someone looking at imminent imprisonment, not just someone who got a subpoena.
I imagine the majority of witnesses in big cases who've testified on subpoena did so basically b/c they got a subpoena, and would have done so without facing imminent imprisonment (especially as compared with, say, a fine.)
10:43, Read Branzburg v. Hayes, 408 U.S. 665 (1972) and tell me why I'm wrong. Notice, there is no requirement of "activeness" in the concealment under the statute or common law. It is an affirmative duty. SCOTUS, but citing misprison of felony in the case raising the EXACT ISSUE we are talking about shows whose side the authority is on. Now you can argue that misprison of felony isn't a correct moral value, but Congress's passing of it as a statute presumptively means that more people support it than not, which is as about a good as reason as any in a demoacracy to say that something is immoral.
Am I missing something? I don't think anyone is talking about charging reporters with misprison of a felony. That would be an entirely new level of infringement of freedom of the press. I can't imagine even a Bush-appointed U.S. Attorney would go that far.
12:32
It's a response to 7:01/7:17/7:40/10:43's argument that
For example, if you saw someone commit a crime, you have no duty to go to the police and report them. But if you hide or destory the evidence, then you're acting illegally.
Society seems to think this is morally acceptable, so why should a government subpoena change the moral calculus?
The presence of the misprisoin of the federal felony statute, and SCOTUS's implication that reporters refusing to testify and name sources would be misprision of felony, rebuts his argument that "society seems to think" that failure to report serious crimes "is morally acceptable."
So, regardless of whether the subpoena "changes the moral calculus," the moral calculus, as represented by the laws of the United States, already finds the act immoral and worthy of imprisonment.
Secondly, since the subpoena power represents the power of the court, it clearly does change the moral calculus. That is because the very essence of the contempt power is to allow the court to punish, within its discretion, specific unlawful disobedience of the court's lawful orders. The court is allowed to issue lawful orders, to enforce rights not necessarily directly protectable by criminal punishment, and make that specific to the certain individuals targeted by the order. In this way, the court's contempt power is an essential aspect of the rule of law.
Think about it this way, how could "fines" work effectively for disobeying orders if you could simply equally disobey the order to pay the fine? Anyone who knows much about satisfying judgments knows how easy it is to be judgment proof. This would especially be the case if you could manipulate assets without worrying about the contempt power.
I don't see how Branzburg supports your interpretation of the misprision statute. Its dicta re the misprision statute doesn't actually say what you say. (The old English law and Blackstone might, but that's purely historical.)
I don't have free Westlaw access (I have to charge any WL time to clients) but if I recall correctly from the last time I looked at the case notes for misprision, there were no convictions for anyone who merely refused to talk to law enforcement.
I assume you have unlimited Westlaw, so if you think I'm wrong, go for it.
"SCOTUS's implication that reporters refusing to testify and name sources would be misprision of felony..."
That's your (unfounded) inference - not an objective implication of what it says.
As Branzburg states, the language of the misprision statute itself requires concealment. I don't see any reasonable reading of the word "concealment" that includes "merely staying silent."
But like I say, if you can find a court case that interprets it as such -- an affirmance of an actual conviction for misprision, that is -- I'd be happy to see it.
Regardless of what you infer from Branzburg, the court is citing the misprision of felony statute in support of its holding that reporters have no 1st amendment right to refuse to testify in front of grand juries to prevent the disclosure of sources.
Whether your read Branzburg as an implicit disapproval of the court of appeals' requirement of an overt act or simply saying that the misprision of felony implicates that there is a public policy against refusing to reveal crimes, it is relevant to the "moral calculus."
Here you go:
http://www.answers.com/topic/misprision-of-felony
This cites US v. Farrar, 38 F. 2d 515, 517, for the proposition that an affirmative act of concealment is required under the misprision statute. I'm pretty sure this is the majority (if not exclusive) rule today.
I'm very familiar with the holding of Branzburg, but its mention of the misprision statute is dicta, and the way it describes it is ambiguous at best.
Courts frequently cite not-quite-on-point law to show they're not off in crazy-land; that doesn't mean the law actually supports the point at issue.
P.S.:
OED:
conceal, v.
1. trans. To keep from the knowledge or observation of others, refrain from disclosing or divulging, keep close or secret.
Dude, you're a law student, right? Then look at the friggin' case law: Misprision requires an affirmative act of concealment.
For that matter, since you like Branzburg so much, look at FN 36:
"This statute has been construed, however, to require both knowledge of a crime and some affirmative act of concealment or participation. Bratton v. United States, 73 F.2d 795 (CA10 1934)."
Wow. Firstly, when SCOUTS says, "X has been construed" and cites court of appeals decisions, it is not supporting those decisions. Secondly and more importantly, who has said that the doctrinal elements of misprision are a requirement for the law to consider the failure to disclose to be immoral? The whole point was to rebut your argument that the imprisonment was wrong because it was punishing an act not considered immoral. However, not all legally enforced moral duties are enforceable by criminal law. I hoped you learned that sometime during Torts.
The Court in Branzburg, although not explicitly stating whether or not it is misprision to fail to disclose, points out misprision supports the notion that the failure to disclose is against the public policy of the United States. Just look at Marbury v. Brooks, 20 U.S. 556, 575 which Branzburg cites in the same footnote: "It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."
Of coure, the whole point of injunctive relief is to allow courts to make criminal violations of legal duties whose violations are not in themselves criminal acts. Otherwise, there would be no such things as property rights, only liability rights, as the only remedy to a trespass would be money.
On a totally unrelated note a Boaltie makes the wedding announcement section of the NYT: http://www.nytimes.com/2006/09/24/fashion/weddings/24Kennedy.html?_r=1&oref=login
I'm sure that UCLA and Davis will be happy to here that Boalt is "the law school of the University of California."
I get the idea that sometimes reporters need to have confidential sources to expose policies, crimes, scandals, and bad behavior that would not be exposed otherwise. But I don't see why leaking grand jury testimony falls into that category. (Leaking that stuff is almost always used to trash criminal suspects who can't fight back.) But, regardless, what this reporter did hardly seems noble, like the reporters who broke the stories about Abu Ghraib and all that.
To anonymolus commenter: thanks for catching my slip. I meant grand juror, not grand jury witness, who can say whatever they like about the grand jury (and hence cannot be leakers).
I'm not sure how this became a misprison discussion, but I'm pretty psyched to see this blog buzzing with legal discussion!
"The whole point was to rebut your argument that the imprisonment was wrong because it was punishing an act not considered immoral."
No, you've misconstrued my argument; you're missing a subtle difference: I'm arguing that society thinks it's morally acceptable not to punish people who fail to report crimes.
I can imagine many examples in which the moral thing to do is to report a crime; but that doesn't mean I think the person should be imprisoned for not doing so.
In other words the quote you cited supports my argument, not yours:
"... the law which would punish him in every case for not performing this duty is too harsh for man."
Exactly. And my question was: Why is this any different for reporters? And in fact, is it possible that reporters should get more protection?
I think you misunderstand the relationship between morality and the law. It's fundamental that not all sins are crimes, and not even all of them are torts. That doesn't mean that society doesn't consider something immorral, as there are all kinds of practical constraints on the enforcement of the law that would make society prefer not to criminalize that which it considers wrong. That is, a society can consider it acceptable to not criminalize an immoral act.
That's why your statement "it's morally acceptable not to punish people who fail to report crimes" is a fallacy. Assuming that society considers an act to be immoral because it is a crime is a fundamental of concept in criminal law. But the inverse is not true, that is, it is not the case that just because an act is not a crime that society considers it morally acceptable or even that society considers it "morally acceptable not to punish it." Practical constraints of the law enfrocement system can be a more important factor in the calculus of criminalization than morality.
Cf. Holmes, The Common Law, 68 ("It will be readily seen that there are limits to [] liability [for attempts]. The law does not punish every act which is done with the intent to bring about a crime. ... Eminent judges have been puzzled where to draw the line, or even to state the principle on which it should be drawn, between the two sets of cases. But the principle is believed to be similar to that on which all other lines are drawn by the law. Public policy, that is to say, legislative considerations, are at the bottom of the matter...").
The greatest weakness in your argument lies in the failure to realize that such practical constraints can equally, i.e. by statute of Congress, be effectuated by the will of the people and thereby place limitations on the contempt power. See 18 USC 401.
That is, the presumption taken from the fact that the contempt in this is a statutorily constrained crime (See 18 USC 401(3)) and that Congress can constrain or expand the power of the court to enter such orders that are a basis for the contempt, (See All Writs Act, 28 U.S.C. 1651; Anti-Injunction Act, 22 U.S.C. 2283; Tax Anti-Injunction Act, 26 U.S.C. 7421(a); Norris-LaGuardia Act, 29 U.S.C. 101 et. seq.), is that society does consider the act to be sufficiently immoral to be criminalized, but rather that practical constraints call for a different procedure for punishment. (See 18 U.S.C. 3691-3693; Fed. R. Crim. P. 42).
"I think you misunderstand the relationship between morality and the law."
Mmm-hmm.
Well at least I understand the law.
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