Here's a story I've told before: many years ago, a friend's client was being arrested in a case that had made local newspapers. The DA investigators showed up early one morning at the client's house to arrest him, cuffed him, and put him in their car. Then a reporter and photographer — tipped by someone on the prosecution side — showed up, late. They complained to the DA investigators that they had missed the perp walk — the iconic shot of the defendant being led away in handcuffs. The DA investigators obligingly got the client out of the car, walked him back into his house, and then turned around and walked him back to the car so that the photographer could get his perp-walk shot. The paper in question ran the perp-walk shot, but didn't mention that the cops had staged it. To the journalists involved, a picture of a suspect in handcuffs is news; the willingness of law enforcement to stage that picture is not news.
That too-cozy relationship between the press and law enforcement drives coverage of criminal justice in this country, which contributes to bad things — uncritical support for the "law and order" mindset, exaggeration of the risks of crime, insufficient coverage of misconduct and abuse, and journalism by spectacle. The relationship also encourages law enforcement to view journalists in an autocratic and entitled manner.
This phenomenon explains why I have mixed feelings about Fox News reporter Jana Winter's decision to risk jail to protect the source of a leak about the James Holmes prosecution in Colorado. You can read more about that story at Patterico or A Public Defender.
Jana Winter reported on a leak from someone she called a "law enforcement source," reporting that James Holmes, the apparent perpetrator of the Aurora theater massacre, had mailed a notebook filled with murder plans to a University of Colorado psychiatrist. Holmes' attorneys want to discover the source of the leak, arguing that the government violated a gag order issued by the court. Winter has been facing the stark choice between revealing a confidential source and going to jail for contempt.
It's imperative that we protect press rights vigorously under the First Amendment. Confidential sources are crucial tools in reporting important stories, informing the public, and uncovering misconduct. Many jurisdictions have laws protecting reporters who want to keep their sources confidential. That's a good thing.
But those are not the only values in play.
When journalists accept inside information from the government — from whatever source — they are making value judgments about what is news and what is not. When the journalists in my story ran a perp-walk picture, they made the judgment that a picture of someone in handcuffs is newsworthy and cops staging pictures is not. When Winter ran this story, she made the judgment that a scoop of Holmes' pre-massacre threats was newsworthy, and the willingness of law enforcement to violate a gag order was not. In making that choice, Winter and journalists like her necessarily abandon certain lines of inquiry. What's the purpose of this leak? Is it truly a leak from a rogue insider, or is it orchestrated by the prosecution? How does it help the prosecution's case or hurt the defense? Is it part of a pattern of leaks by this agency in certain types of cases? What laws did it violate? Has anyone with this agency ever been held accountable for leaks? Should they be? Was every part of the leak accurate, and how was that accuracy investigated?
When journalists make that value judgment, their choice is informed by their relationship with law enforcement — a relationship characterized by too much deference, uncritical acceptance, and interdependence. The choice is also informed by the modern media sensibility that favors sensationalism, the fast news cycle, and if-it-bleeds-it-leads thinking. Splashy stories about horrors are favored; complex stories about structural and cultural problems with criminal justice are disfavored.
Journalists will have you believe that when they print leaks from law enforcement they are keeping the public informed and promoting the free flow of information. Perhaps they are. But they are also acting as the tools of the government — whether willingly, indifferently, or ignorantly. The government leaks information — often in violation of law, often in violation of the defendant's constitutional and statutory rights — to control the narrative about the case, and to inflict unofficial punishment on suspects and defendants. This is an abuse of state power. The profession of journalism seems to have decided, collectively, that this abuse of power is not the story, or that it is, that it is outweighed by the benefits the public reaps from the abuse of power. Even though journalists claim that this decision is in service of the search for truth, sometimes it leads to participation in lies. Consider, for example, the scandal that surrounded the BALCO grand jury investigation, in which a defense attorney leaked grand jury transcripts to the media and then accused the government of doing it, seeking to have his client's case dismissed on that basis. In that case the defense, not the government, was the wrongdoer, but the media was an instrument of untruth and obstruction of justice. The journalists in that story valued protecting their sources of leaks above telling the public the truth about grave accusations of misconduct.
I'm not saying that laws shielding journalists are wrong. I'm not saying Jana Winter should go to jail. I'm saying this: maybe we should start asking journalists why they don't investigate leaks rather than accepting them. Maybe we should question the media's value judgments when it decides what misconduct is news, and what misconduct isn't. Maybe we should respond to leaks not with glee at getting inside dirt, but with demands that the government be held accountable for its conduct.
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