Hamilton Andrew - Indelible ink: the trials of John Peter Zenger and the birth of Americas free press

RICHARD KLUGER

INDELIBLE INK

The Trials of
John Peter Zenger
and the Birth of
Americas Free Press

W. W. NORTON & COMPANY

INDEPENDENT PUBLISHERS SINCE 1923

NEW YORK LONDON

For Judy Crawford and John Doyle,

dear pals, wise and caring,

and bookpeople of singular devotion

O N THE FACE of it, press freedom in America has attained a degree of vigor that would have been as unimaginable to Peter Zenger and his contemporaries as todays man-made vehicles traveling to the edge of our solar system. In the half-century following the landmark ruling in New York Times v. Sullivan (1964), proliferating news media have seen their expanded liberty consolidated even while venturing into the hazardous terrain of cyberspace, where technology has revolutionized the field of communications no less than in the Gutenberg age.

On closer examination, though, these gains have not come without fresh challengesand by one measure, at least, free expression remains nearly as imperiled as when Britains Star Chamber ruled that to maintain the peace of the realm its government was fully entitled to silence all voices of protest and dissent. Nowadays in the United States, we speak of national security as the primaryand usually the onlyrationale for policing the press, and to safeguard our people, First Amendment rights have at times been deemed less than absolute. In twenty-first-century America, there is little or no interference with transmitting information and opinion that might have formerly been considered subversive (i.e., endangering law and order or inviting insurrection by undermining public faith in the government). But in the age of global terrorism and nuclear armament, there is notably lower tolerance for protecting the sources that provide the media with some of their most important and disturbing revelations.

Packaging information for readers, viewers, and listeners from sources that eagerly provide it has long been a basic service of the news media to abet the publics health, safety, and convenience. Many sources, of course, provide the press with information of a primarily self-serving nature to gain profit, power, and celebrity, and so the media have long been licensed by law and custom to determine which items they will select from this outpouring and how they will refine the raw material to edify, gratify, or influence their consumers. But investigative journalismferreting out and reporting illegal, immoral, or otherwise antisocial activity that its perpetrators do not wish to be publicly knownhas often proven a far more hazardous enterprise. Sometimes the indicting evidence is just sitting there, awaiting discovery by the persevering reporter. More frequently the critical element in reportage of this sort is leaked from disaffected inside sourceswhistleblowerswho require reporters to keep their identities confidential for fear of reprisal. While no legal impediments stand in the way of publishing such revelations other than the Sullivan exception for malicious defamation, law enforcement officials have often requestedand sometimes gone to court to obtaindisclosure of reporters confidential sources when the subject is criminal behavior that appears to justify prosecution. But if it became generally known that reporters were unable to assure skittish informers that their identities would be protected, investigative journalism would be hobbled and the latitude of press freedom seriously compressed. The issue needed to be adjudicated.

In its 1972 decision of Branzburg v. Hayes, the Supreme Court denied reporters the same privileged communication with their sources that lawyers are accorded with their clients, doctors with their patients, and clergymen with their parishioners, so they cannot be compelled to testify in court proceedings about their confidential exchanges. Branzburg held that journalists had no more right than any other citizens to withhold information sought by prosecutors and that any resulting impingement on the presss ability to gather confidential information on a pledge not to reveal its sources had to yield to societys need to maintain the fair administration of justicean interest with roots said to run deeper and date back farther than freedom of the press. A dissenting opinion, however, by Justice Potter Stewart, since widely invoked by lower courts, proposed a balancing test to require prosecutors to show that they were not engaged in fishing expeditions for incriminating information by forcing reporters to break their vows of secrecy; that the public had a compelling interest in the information sought; that it had a direct bearing on the misconduct charged, and that it could not be obtained in any other way. At first, the Branzburg ruling seemed a heavy blow to investigative journalism. And some reporters have been jailed or threatened with jail for defying court orders to testify, but prosecutorial power has been sparingly applied, perhaps because public opinion has favored reporters principled resistance to government coercion, and sentences have been short. In the highest-profile case yet, New York Times reporter Judith Miller served eighty-five days for refusing to name the leaker in a national security matter.

The Branzburg decision, moreover, allowed that the states and Congress could, if they chose, pass shield laws granting reporters the professional privilege of not having to disclose confidential sources, and every state except Wyoming has since awarded journalists at least a qualified privilege under the First Amendment or its own state constitution not to testify, with Justice Stewarts balancing test to be applied in some places. A few states like California and Alabama have allowed the press blanket immunity from testifying while others have tests to ensure that the reporters are certifiably professional journalists. Determining just who qualifies as a real journalist has prompted an ongoing judicial debate; the New Hampshire Supreme Court, to cite one tribunal, has adopted a broad standard by granting eligibility to Internet practitioners like bloggers and website curators on the ground that freedom of the press is a fundamental personal right, which is not confined to newspapers and periodicals. As print media have receded and the public has turned increasingly to electronic images on screens for information and opinion, online providers have made headway in winning legal protection under the First Amendment. Their gains have come notwithstanding that the new breed of information purveyors often lacks the responsible supervisory support systems of traditional news organizations and may be described in some instances as vanity media. Still, if free expression really means what it says, how can a democracy constitutionally impose admissions standards limiting who is entitled to the protected use of the megaphone to address the World Wide Web?

A yawning gap remains in shield-law protection for journalists guaranteeing their freedom from disclosure of news sources: there is no federal statute granting that privilege. Congress has taken up the matter but repeatedly shied from enacting such a measure, largely for fear that it would encourage leaks from within the national security community. It may be safely said that no issue holds greater importance to the vitality of the free press since the