From the Hotline
The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.
The attorneys' answers are not meant to be relied upon as legal advice specific to any reader's situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee's legal assistance hotline for more information or for help in finding an attorney.
Q: In light of the U.S. Supreme Court s recent ruling in Garcetti v. Ceballos that government employees who speak out about wrongful conduct can be punished for such speech, how can reporters covering whistleblowers continue to report on those important stories?
A: For perspective on this issue, we turned to two attorneys who handle newsgathering issues for media clients.
Charles D. Tobin, Holland fr Knight LLP, Washington, D. C.:
As we have seen from the pronouncements of our courts, executive officials and legislators in the past few years:
* Government employees can be fired for exposing their agencies' serious misdeeds.
* Public officers can freeze reporters out of routine information in retaliation for unfavorable journalism.
* The federal government's more proaccess policy has given way to an official culture that encourages the denial of Freedom of Information Act requests where any "sound legal basis" exists.
* An attorney general fueled by several years of bad court rulings on reporters' promises of confidentiality has hinted that journalists could be prosecuted for reporting on closely held government information.
* Congressional representatives overeager to jump on the national security bandwagon denounce critics of official policy as "traitors."
In the face of this tri-cameral assault, can the press still expect to report tips from whistleblowers with the same vigor as before? Good question. The answer is still unclear.
The recent wave of news stories about warrantless wiretaps, executive branch requests for telephone and bank records, and the treatment of prisoners of war strongly suggest that confidential sources continue to speak out when it really counts.
So long as there remain Mark Felts and Daniel Ellsbergs willing to risk their jobs to expose serious government misconduct - and Myron Farbers and Judy Millers willing to do whatever it takes to tell their stories - the voices of the whistleblowers should remain prominent.
But America's newsrooms need to continuously educate our communities. Readers and viewers must understand why sources who inform public debate are not traitors, and why measures like the shield bills pending in the Congress can help assure that these voices won't be silenced.
If the journalism community is too quiet on these issues, that could chill the news of the day even more than the silence of the community of sources.
Tom Devine, Government Accountability Project, Washington, D.C.:
Although the high court's decision was disastrous for government accountability, as a rule reportersource communications with whistleblowers should dodge the Garcetti bullet. The decision cancels First Amendment rights when government workers do their jobs. Hardly any employees' job duties require them to alert the press when the government has not told the truth in its official position.
Lower courts have since applied the ruling numerous times already, and results are encouraging from that angle.
First, rulings have noted that few employees have jobs requiring them to monitor and report misconduct. While some do, such as inspectors, investigators and auditors, their duties almost never extend to blowing the whistle through media …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: From the Hotline. Contributors: Not available. Magazine title: News Media and the Law. Volume: 30. Issue: 3 Publication date: Summer 2006. Page number: 35+. © Reporters Committee for Freedom of the Press Fall 2008. Provided by ProQuest LLC. All Rights Reserved.