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June 17, 2004 | 9:49 PM ET


Quite a few readers responded to yesterday's post.  To my surprise, nobody was defending the press.

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Name: Tracey Fooshee
Hometown: Atlanta

Thanks Professor Reynolds. It seems to be yet another desperate attempt to keep a grip on what is hopefully becoming a sharp decline in power.  I'd much rather have a modest, well policed, ethical and professional media willing and capable of turning their powers of scrutiny inward as frequently as they do on others but, sadly, it appears that is too much to hope for. Curiously, these kinds of claims of exemption from people wielding immense power are what gave rise to the media's influence during the Nixon administration. Are we witnessing a similar kind of corruption?

Name: Fred Ekins
Hometown: Mundelein, Il.

Slap the reporters and their organizations with a contempt of court citation and jail them for as long as it takes to get to the truth. 

The reporters probably don't want to testify because their own lies and misquotes may be revealed to the public. 

Glenn replies:  Well, that's pure speculation -- but after the numerous press scandals of the past year (Jayson Blair, etc.) it's not out of the question.

Name: Sam Pitts
Hometown: Portland, OR

Well said.  Another example of the press acting like they are above the law is Robert Novak. Why should he not be prosecuted for publicizing the name of a secret CIA operative? That is a felony. The source of the information does not matter.  He was the one that published the information.

Glenn replies:  I agree -- I've been calling for Novak to be subpoenaed for months.

Name: Joe Zwers
Hometown: Tujunga, CA

The framers of the constitution established the government with three branches and a system of checks and balances designed to prevent tyranny on the part of any of those branches. The press often fancies itself as the fourth branch of government and, as Freeman put it, "We are supposed to be the watchdog of our government."  But if it is to be the fourth branch, and serve that vital role of watchdog, it must also be subject to checks and balances the same as are the other three branches.  Watchdogs have masters as do lapdogs.  A watchdog is only useful if it knows its proper role (protection, not attack) and doesn't go indiscriminately attacking everyone that enters its territory; or go attacking its own masters rather than burglars.  When an actual watchdog goes out of control, it is euthanized.  Metaphorical watchdogs who act irresponsibly invite censorship.

Glenn replies:  Euthanasia may be a bit much, but you're right that the "fourth branch" bit is something of a conceit.  Free speech is the check on the government -- not the institutional press.  It's in the interest of the institutional press to confuse the two, but the rest of us shouldn't.

I'd like to see a free and a responsible press.  But freedom isn't the same as being above the law, and immunity from consequences tends to lead to corruption.

June 16, 2004 | 7:43 PM ET


Are members of the press above the law?  Some seem to think so.  The result:  absurd stories like this one.

Reporters at three news organizations are resisting subpoenas issued in the trial of a lawyer charged with conspiring to support terrorists.

Prosecutors issued subpoenas to four reporters at Reuters, The New York Times and Newsday, saying they want the reporters to testify that lawyer Lynne Stewart said what they quoted her as saying in their articles.
. . .
Lawyers for the reporters have argued that making the reporters testify would compromise their neutrality by forcing them to side with prosecutors.

"Compromise their neutrality?"  All that the reporters are being asked to do is to perform their duties as citizens and -- like any other citizen -- to testify in court about matters relevant to a criminal trial.

Even priests and lawyers, whose rights to keep confidences are of longstanding, are only allowed to keep confidences.  They're not allowed to refuse to testify about things they've revealed to the public.  Once you publish a story, it's not confidential.  The notion that a reporter has a right to be above the judicial process in order to preserve some sort of "neutrality" has no basis in the law.

As Eugene Volokh notes:

The government wants to ask the reporters what Lynne Stewart said to them for purposes of publication — it wants to confirm that the quotes that the reporters published are indeed what Stewart said. If you expect your words to be in the New York Times, you likely won't be terribly surprised or concerned that they may end up being quoted in court as well.

This has little to do with the ability to keep confidential information that really is confidential (such as the identity of a confidential source). If the concern is that the reporters will be asked for truly confidential material, then the solution is to ask the court to bar such questioning, not to refuse to testify altogether, including about the clearly nonconfidential material.

More broadly, the New York Times lawyer's rhetoric here, about not being the "lap dog" of the government or "in bed with" the government, is just appalling. All of us, as citizens (or even noncitizens), generally have a duty to testify when called on to do so. That duty is part of the legal system's attempt to learn the truth, and provide justice to the government and to individuals alike.

And what's revealing -- and troubling -- is that these media organizations think that they're exempt from the obligations faced by ordinary citizens.  And, in fact, I think that rather than the First Amendment, another provision from the U.S. Constitution is relevant here:

No Title of Nobility shall be granted by the United States.

One characteristic of titled nobility was an exemption from some of the legal duties imposed on commoners.  Today's media folks seem to think that they're entitled to the same kind of immunities.  But free speech is an activity, not a profession, and there's nothing in the First Amendment that grants the press any privileges that the rest of us don't possess when we engage in free speech.  As Volokh says, the media behavior here is "high handed."  And it shouldn't be rewarded.

June 15, 2004 | 1:20 PM ET


David Brooks has an interesting column today:

This year the Democrats will nominate the perfect embodiment of an educated-class professional.  John Kerry graduated from law school and plays classical guitar.  President Bush, however, went to business school and drives a pickup around his ranch.  So we can watch the conflict between these two rival elites play itself out in almost crystalline form.

This educated-class rivalry has muddied the role of economics in shaping the political landscape.
. . .  
If not for the civil war within the educated class, this country would be far less polarized.

Brooks' column can profitably be read together with this piece by John Tierney from Sunday's New York Times.  Tierney writes:

Have Americans really changed so much since the day when a candidate with Ronald Reagan's soothing message could carry 49 of 50 states?

To some scholars, the answer is no.  They say that our basic differences have actually been shrinking over the past two decades, and that the polarized nation is largely a myth created by people inside the Beltway talking to each another or, more precisely, shouting at each other.

These academics say it's not the voters but the political elite of both parties who have become more narrow-minded and polarized.  As Norma Desmond might put it: We're still big.  It's the parties that got smaller.
. . .
Most voters are still centrists willing to consider a candidate from either party, but they rarely get the chance: It's become difficult for a centrist to be nominated for president or to Congress or the state legislature.

That seems about right.  Partly, I suspect, as the result of various campaign reforms, the parties have become prisoners of their bases. 

Old-time political bosses used to pick candidates they thought would appeal to the center.  Special-interest groups, who now largely control both parties, pick candidates who appeal to their members. 

Journalists and pundits, who make money from controversy, fan the flames. 

This is a bad thing.  In a multicultural democracy like ours, there's enough to divide us without people trying to generate artificial divisions.  The good news is that, from all the evidence, it's not working.

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