Tuesday, June 28, 2005

Supreme Court puts Journalists in the Line of Fire

On June 27, the Supreme Court refused to hear the appeals of two journalists who would not identify their sources, letting their convictions stand and forcing them to face prison time. The Court has made a grievous error in issuing this non-decision. In denying the appeal and ducking the issue, the justices have again restricted one of the fundamental rights that protect democracy and hold the government accountable for its actions.

The First Amendment to the Constitution provides for, among other things, a free press in this country. Journalists follow a calling that takes them around the world to report back what is going on around us, be it charges of torture at Guantanamo, news on the elections and deaths in Iraq, or on cases of the President of the United States violating the law in covering up a crime. We were reminded again just a few weeks ago how important investigative journalism can be when Mark Felt unmasked himself as Deep Throat, the secret source who was critical in uncovering the Watergate break-in and cover-up that brought down the Nixon presidency.

It is even more appalling that in this environment of renewed interest in investigative journalism and awareness of the importance of legitimate, high-placed anonymous sources, the Supreme Court has denied reporters this important avenue of information. Without the guarantee of the protection of anonymity, it is much more likely that those with information will not come forward. While their information can be critical, their coming forward may depend on their identity being protected. It is the same reason we have witness protection and whistleblower laws, so that fear of retribution does not get in the way of someone doing the right thing.

In 1965, the Supreme Court recognized that there was a right to privacy in what was termed the "penumbra of rights" in different amendments to the Constitution. This set the precedent for recognizing and protecting fundamental rights that were not specifically listed in the document. The protection of non-enumerated rights is especially important when the right in question is related to one of the fundamental rights listed in the constitution, as is the case here.

The First Amendment specifically says that the press is protected, but, in this case, the Court has taken the teeth out of that right. It is as if they have handed journalists a flashlight, complete with batteries, but have taken away the light bulb inside. It looks good, almost as if it could work, but in truth is nothing more than a shadow of what it could and should be.