Should courts have the power to force journalists to hand over their records? This has been a significant issue of debate for centuries. Currently, it’s a front burner issue both in Mississippi and the nation.
Forty states have “shield laws” which protect journalists from court subpoenas forcing them to hand over their records, notes and sources because of litigation. Mississippi is one of the 10 that do not.
This issue has come to a head in a defamation lawsuit between former governor Phil Bryant and Mississippi Today, a statewide online news publisher.
Mississippi Today recently won a Pulitzer Prize for its investigation into misuse of federal TANF — money that was originally supposed to go to the neediest of families. Over the years, $77 million in TANF was used for a variety of projects with only a thin connection to fighting poverty.
The TANF scandal, spearheaded by state auditor Shad White, became a huge news story in Mississippi and even the nation. Mississippi Today’s persistent coverage led to a Pulitzer Prize.
The scandal ocurred during the Bryant administration, but he has never been charged with any crime.
Interestingly, it is not the Pulitzer-winning series on which Bryant’s lawsuit is based, but rather comments made by Mississippi Today CEO Mary Margaret White while speaking on a panel about the scandal.
According to Bryant’s lawsuit, “While serving on a panel at the 16th Annual Knight Media Forum in Miami, Florida, White boasted to an audience of 600 journalists, journalism industry professionals, financiers, and Knight Foundation employees that Mississippi Today had broken the story of Bryant and his bureaucratic cronies embezzling $77 million of welfare funds. The Knight Foundation posted White’s presentation on the Internet for everyone worldwide to view and share . . .
“White did not apologize for accusing Bryant of embezzling $77 million of welfare funds and did not retract and correct her false and slanderous remark. Instead, she said that prosecutors had not charged Bryant with a crime. White’s accusation and subsequent statement convey that Bryant embezzled $77 million of public funds, but criminal authorities have failed to prosecute him.”
In addition to shield laws, over decades state and federal courts have developed common laws called “reporter’s privilege.”
In Branzburg v. Hayes (1972), the Supreme Court considered three consolidated cases determining whether there is a constitutionally based privilege in the First Amendment that permits reporters to refuse to testify before a grand jury.
The U. S. Supreme Court, in a 5-4 decision ruled against reporter’s privilege for reporters subpoenaed to testify before grand juries.
In January this year, the U. S. House of Representatives voted unanimously to shield journalists “from disclosure of any information identifying a source, as well as any records, contents of a communication, documents, or information obtained or created by journalists in the course of their work.”
But then President-elect Trump tweeted that we “must kill this bill.” Now the bill faces a rocky road in the U. S. Senate.
Unlike many countries, the United States does not regulate or license journalists. In fact, our U. S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . ”
This creates a very complicated environment in which professional journalists operate. The “press” (as it is anachronistically referred to) has a key role as a watchdog over government yet has no official standing.
President Thomas Jefferson famously wrote, “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”
It was the investigative reporting of the Washington Post, using anonymous sources, that led to the exposure of the Watergate scandal and the resignation of President Richard Nixon.
In recognition of the vital role of a free press as a governmental watchdog, the U.S. Supreme Court ruled in 1964 in New York Times v. Sullivan that, in regards to public figures, a plaintiff must prove “reckless disregard” for the truth and “actual malice.” That is an incredibly high bar. The “absence of malice” term is so critical to investigative reporting that it was the name of the movie about a newspaper investigation.
Because Bryant is a public figure, he will have a hard time proving malice and winning his lawsuit against Mississippi Today. But the issue at the moment involves whether Mississippi Today has to hand over all its notes and sources to Bryant’s legal team as part of the discovery process.
Interestingly, that’s a two-edged sword. The lawsuit also gives Mississippi Today subpoena power, which Mississippi Today could use to acquire documents from Bryant that it couldn’t get normally.
The Reporters Committee, a non-profit that works to protect journalists, has a list of 24 journalists who have gone to jail rather than comply with a court-ordered subpoena. Dozens more reporters have been fined.
This legal battle could easily turn into a national sensation if one of the Mississippi Today Pulitzer Prize winners goes to jail defending their right to protect their sources. If Bryant is trying to protect his reputation, this would be a horrible way to do it.
Just this month, the Mississippi Supreme Court ruled 6-2 against Mississippi Today, forcing them to reveal their sources.
Investigative reporting is dying in America as journalism dies. This will have an enormously negative impact. Jackson’s Lumumba and Owens scandals would never have happened if the Clarion-Ledger had 100 reporters like they used to. Now they have a handful.
It’s easy to bash the press and argue about bias. But Americans will rue the day they destroyed journalism in this country.
