The Houston Chronicle today waxes eloquent about the decision to strike down a subpoena issued for materials from KPRC television here in Houston.

LAST year set dangerous precedents for investigative journalism in the United States. Reporters for print and electronic media were hauled into court in matters both civil and criminal. One of those cases involved an investigation into who outed covert CIA operative Valerie Plame, which led to grand jury appearances by a Who's Who of national journalists.

While some of the media's legal difficulties in Plamegate sprang from questionable decisions by reporters and their editors in handling confidential sources, prosecutors clearly have gone after news reporters in hopes of building their cases against suspects. That's why state District Judge Mark Kent Ellis' decision, which went against the trend, should be welcomed by those who believe a free press is essential to American democracy.

Harris County consumer fraud division chief Russell Turbeville had subpoenaed KPRC TV (Channel 2) to produce unaired video compiled during reporting on home loan fraud and a dog consignment business. Houston television stations have routinely provided police and prosecutors with crime-related video that aired in news reports but have declined to provide either outtakes or video compiled for stories that were never broadcast.

KPRC's lawyer argued that if a prosecutor was given sweeping access to unaired material, it would disrupt news-gathering and allow a district attorney to intrude any time he thought a reporter might have information he wanted. KPRC officials offered to allow prosecutors to view the unedited tape and take notes, but Turbeville insisted that tapes he hadn't seen were essential to building a fraud case.

A similar scenario also could haunt print and radio reporters. Law enforcement officials could seek to acquire notes or tapes reporters created while working on stories never aired or published. If reporters become reluctant to interview law enforcement officials for fear of disclosing stories in progress, the public will know less about police and prosecutors' actions and policies.

In a partial victory for the television station, Judge Ellis ruled last week that KPRC did not have to release video compiled for a story that was not aired. He did allow the prosecutor to get some unaired footage edited from two other reports that were broadcast.

Ellis indicated he is concerned about the erosion of media independence: "Ever since the Constitution was issued, it's been chipped away at. I'm sympathetic with the needs of a press to be free."

In order to cultivate and protect sources with information the public needs to know, reporters cannot be made to act as surrogate police investigators who can be hauled into court any time a district attorney gets the urge. Rather than trying to piggyback on KPRC's work, prosecutors should cut down on their TV watching and go back to building their cases the old fashioned way.

The only problem is that the entire editorial rests upon a flawed understanding of the First Amendment and the rights of a free press -- not to mention the rights and the obligations of citizens in general.

You see, the editorialist starts with the assumption that the media is some sort of sacred institution, with journalists being priests devoted to some higher calling than other mere citizens. But the MSM are nto endowed with special rights, and professional journalists are entitled to no more privileges under the First Amendment than any other citizen.

For example, I write this wonderful blog you read. I consider myself to be a citizen jurnalist/commentator. Suppose I uncover information about criminal conduct but do not use it -- will I be shielded under the "Free Press" provisions of the First Amendment? We all know the answer there -- refuse to testify or turn over evidence under subpoena and I will go to jail. But were I a "professional journalist", a member of the "working press", and there is suddenly a claim of immunity. Why the difference? Don't reporters have the same obligations to follow the law as otehr citizens?

What I am trying to point out is that the First Amendment belongs to the people, not the media. It confers no special privileges upon the press that are not conferred upon all Americans generally -- and certainly not the privilege to obstruct justice and withhold evidence. For the media to seek such a privilege and the courts to recognize it is not just wrong-- it is unAmerican.

Posted by: Greg at 04:44 AM | No Comments | Add Comment
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