Monday, March 10, 2008

Law, Ethics, and What's Right

Two incidents have recently come to my attention, and both have something to teach us about law and what's right.

In the first instance, attorney-client privilege required two attorneys not to reveal information, obtained from their own client, that would exonerate an accused innocent man. That man spent 26 years in prison.

The first two comments to that post are especially sharp.

So, they were willing to let a man they know to be innocent spend his life in prison, to protect a man they know is guilty and free, but if there had been a death sentence, they '... thought that somehow they might stop it' ?? When ? After 20 years on death row ? Or perhaps on the gurney ? Or maybe come to the 'ethical decision' to let him die ?

Sorry, campers - there is something terribly wrong with a 'system of ethics' so twisted, so amoral, as to not only permit, but demand, this. That is not 'ethics', that is 'perversion'.


As a non-lawyer to whom their behavior seems incredibly unethical (and a professional in a field whose canon of ethics includes a term defining a positive obligation to disclose information to prevent harm), I've got to ask:

Why do lawyer ethics require that outcome? Doesn't what they did make them accomplices to a false imprisonment, akin to kidnapping?

You wonder how those two attorneys slept at night.

In the second case, a reporter is in jail and facing steep daily fines for not revealing sources to a court.

A federal judge has ordered a former USA TODAY reporter to begin paying fines of up to $5,000 per day after finding her in contempt of court for failing to identify sources who named former Army scientist Steven Hatfill as a possible suspect in the 2001 anthrax attacks.

The decision late Friday night by U.S. District Judge Reggie Walton also requires Toni Locy — not her former employer or others — to pay the fines as long as she refuses to identify her sources.

I know, I know, journalists think they're entitled by the 1st Amendment to keep secrets. They're mistaken.

Glenn Reynolds of Instapundit fame has penned an opinion piece on the topic in USA Today.

Ordinarily, people are required to respond to subpoenas by providing information... Likewise, if ordinary people witness a crime, they can be required to testify about it.

Journalists, however, claim a special status: They argue that complying with subpoenas in ways that would identify their sources might make people less likely to confide in them in the future. There are two problems with this argument: The first is that the Constitution doesn't require it. The second is that we're all journalists now.

I don't understand why Reynolds, a law professor, merely flirts with the real issue--the Constitution.

The Constitution allows the press to publish whatever it wants, with no prior restraint and with only the slimmest of restrictions. Nowhere does the 1st Amendment give members of the press, however we define that group, free rein to gather that information. Reporters aren't allowed to break the speed limit to get to a breaking news site, they're required to stay behind the "Police Line--Do Not Cross" tape unless invited, and cannot compel people to speak.

The 1st Amendment doesn't require that every hurdle be removed from the path of reporters. News organizations pay taxes, correct? People who make a living reporting the news pay taxes as well. I'd say that taxing an activity is clearly a form of regulation. Obviously, the 1st Amendment is not a carte blanche.

In other words, the 1st Amendment press freedom relates to publishing. This is why the 1st Amendment applies equally to the New York Times and Wall Street Journal as it does to bloggers, just as in colonial days it applied to newspapermen as well as to pamphleteers. Disseminating the information is what's protected.

Newspapermen claim they won't be able to get information in the future if they can't keep their sources confidential. I agree with Reynolds when he says:

Complying with subpoenas might make journalists' lives more difficult, but lots of industries are burdened by having to comply with the law.

Journalists usually aren't terribly sympathetic to those industries' complaints. We should be no more sympathetic to reporters' special pleading.
So we have two cases here in which so-called professional ethics present disturbing ends. In the first, laws required attorneys to let an innocent man languish in prison, and in the second, a misguided belief in a "right" or privilege that doesn't exist (except where codified in shield laws) is causing a reporter to go broke in jail.

Is there ever a time when we just have to sit back and ask: What does your gut tell you is the right thing to do?


Unknown said...

Your analysis of the second situation is pretty one sided. Obviously if the reporter has information on a source that he knows could prevent the harm of others he should give it, but otherwise I see forcing reporters to give away sources as destroying the ability of the press to do its job. Most of the time people who give information and request that their identity be secret do so because in some way their life is in jeopardy for giving away the information. If they didn't have assurances from a journalist, most of those informants wouldn't have even thought of calling a reporter and the rest of the world might never have known what they would have said. So many news stories have relied on protected sources and I think to throw away such an important part of our society isn't the "right" thing to do at all. Your right to say that it isn't a right reporters legally have, but I think it's one they should have.

Darren said...

Of course it's one-sided, Ronnie--this is *my* commentary.

I understand the argument in favor of shield laws, I just don't agree with it. First Amendment press freedoms belong to all of us who publish, not just the self-annointed. That's why it's called freedom of the (printing) press, not freedom of the news media.

Unknown said...

I've been following the first case on Patterico. Interestingly, had the man been given the death penalty, then his attorneys would not have been bound by ethics to remain silent.

The attorney for the man, by the way, acknowledged that the other attorneys had no choice but to remain silent.

Happy Elf Mom (Christine) said...

Darren, I used to be a newspaper reporter on a daily and technically "the press" has NO rights any other Joe off the street wouldn't have. But you'd be surprised at how differently you get treated when you tell someone you're Mrs. C from such-n-such paper and can you tell me about "whatever"... instead of walking into a place and saying you want to know about "whatever."

But my *first* thought was that USA Today had better stand behind this reporter. Are they giving legal counsel or paying fines for her? It sounds like they are not. But you'd better believe they'd expect her to keep her sources confidential in an investigation.

The reporter is in a very bad place.

Darren said...

The judge will not allow her employer or any other organization to pay her fines for her.