I was interviewed by a Canadian Press journalist last week by phone about the impact of social media in the courtroom. This got me thinking about a few issues that affect not only journalists and lawyers, but the public at large. The ability to speak freely about matters of public concern is considered a cornerstone of a free and democratic society. Just ask any protester in Libya today how much free speech was tolerated the last 42 years of Gaddafi’s military dictatorship.
Then again, not all free speech is created equal. There are limits to what an individual may say or disclose to the public—both Julian Assange and Bradley Manning typify the balance between the right to know and the need to know. For those who are more interested in the need to know more, you’re in the wrong place, move along, nothing to see here. Tell Charlie Sheen to get some professional help.
Freedom of the press and freedom of speech are not universally protected, but there is a discernible trend emerging. Chris Merritt of The Australian writes today about a proposed federal shield law for journalistic sources which extends protection beyond traditional news media:
The federal shield law will still create a rebuttable presumption that journalists’ confidential sources will be legally protected, but the government has made changes to ensure it is “technology neutral”.
Anyone “engaged and active” in the publication of news in any medium will be considered to be a journalist and will be able to claim protection for their sources.
The changes, which were approved by the Senate on Thursday, triggered a warning from opposition legal affairs spokesman George Brandis.
While endorsing the need to protect journalists’ sources, Senator Brandis said the changes supported by the government and the Greens had given the term “journalist” a meaning that was too broad.
“It says to every person in society that, whether they are journalists or not, if they are seeking to publish or bring to public awareness a fact which they assert to be a newsworthy fact, they should have a presumptive privilege,” Senator Brandis told the Senate.
He said this was not the protection of journalists’ sources, but the protection of communication between people that resulted in one of them publishing news. Any form of privilege meant withholding information from courts and should therefore be done as conservatively and narrowly as possible, he said.
Recall that the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers”
Contrast the Australian federal shield law with the Supreme Court of Canada decision in R. v. National Post, 2010 SCC 16,  1 S.C.R. 477 which dealt with the scope of journalist-source confidentiality and journalistic privilege. In Justice Binnie’s view, there are no established professional journalistic standards:
“…[there are an] immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources. In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.” (at para. 43).
Citing Grant v. Torstar Corp., Binnie, J. grouped “traditional media” together with “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper.” (at para. 40).
In applying a case-by-case model of privilege employing the ‘Wigmore criteria’, Justice Binnie remarked:
 It is of passing interest that Professor Wigmore himself was not a supporter of journalistic-secret source privilege. He described an early legislative attempt to craft a shield law (Maryland, 1923) “as detestable in substance as it is crude in form”. He predicted (wrongly) that it “will probably remain unique” (Wigmore on Evidence (2nd ed. 1923), vol. 5, at § 2286, n. 7).
 However, the world of journalism has moved on since Professor Wigmore’s day. The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. The need to shine the light of public scrutiny on the dark corners of some private institutions as well is illustrated by Benotto J.’s reference to corporate delinquencies in the list reproduced above at para. 28. Professor Wigmore’s criteria provide a workable structure within which to assess, in light of society’s evolving values, the sometimes-competing interests of free expression and the administration of justice and other values that promote the public interest. This will provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law.”
In my previous post, The Wild West of Journalistic (and Blogistic) Ethics, discussing the R. v. National Post decision, I remarked:
“Is “licensing” really the issue? Most mainstream journalists, or even freelance journalists, write for well-established media outlets, newspapers, websites or blogs that are recognized as credible news gathering sources. A Google search for “journalistic standards Canada” yields 2,230,000 results. Here are the top four:
Perhaps it’s high time for bloggers to unite and draft a “Universal Declaration of Blogging Ethics and Standards” and post them conspicuously on their blogs and websites. Better yet, let’s hope the Court clarifies the role of non-journalist bloggers in the context of emergent new media platforms and anachronistic libel laws.”
Will freedom of the press become consumed, or at least subsumed, by freedom of speech? Not likely.
There are different principles and values at stake: Journalism is about the public’s right to know, while blogging is about an individual’s free speech. However, if you’re expressing your opinion on a matter of public interest, the conceptual lines begin to blur. Consider the recent U.S. Supreme Court decision in Snyder v. Phelps (March 2 2011, slip op., 09-751) which held that the First Amendment shielded Westboro from tort liability for its picketing of a private military funeral. In an 8–1 decision, Chief Justice John Roberts wrote the majority opinion stating:
“What Westboro said, in the whole context of how and where it chose to say it, is entitled to ‘special protection’ under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.” (slip op., at p.13)
Chief Justice Roberts adds:
“‘[N]ot all speech is of equal First Amendment importance,’” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler, supra, at 56 (quoting Dun & Bradstreet, supra, at 758); see Connick, supra, at 145–147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues;there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet, supra, at 760 (internal quotation marks omitted).
In a concurring opinion, Justice Breyer notes that the “[majority] opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings.” (see also slip op., fn.1 which refers to a comment posted on Westboro’s website which did not factor into the Court’s analysis.)
Nevertheless, the distinction between journalism and blogging remains significant, as highlighted by Scott Greenfield in his Simple Justice post “They Report, We Decide“. Apparently, Kevin O’Keefe was contacted by a reporter and asked “Can/should lawyers blog/tweet about pending cases? “, to which Scott responded:
“But the “why” part remains the same. As far as any journalist would know, Kevin is a guy who sells blogs to lawyers for a living. Why would a journalist ask a guy who sells blogs to lawyers about whether blogging/twitting about pending cases is a good idea? If someone is going to write about this very sensitive and problematic subject, where should he turn?
This is what troubled me. Usually, it bothers me when I see some lawprof quoted on the hardscrabble, nitty-gritty reality of the courtroom, because journalists love to beef up their work with the ascribed credibility of law professors who know everything there is to know about the practice of law. And so the journalist writes, the lawprof opines, and those of us who have a clue what’s beneath the surface cringe.
I’ve written much about lawyers so beloved of seeing their names in print, their faces on the tube, that they will run down to the local journalist like Odie the dog, tongue a’waggling, for the chance to offer an opinion. The fact that they know absolutely nothing about the subject or case doesn’t slow them down for a second. The fact that they have absolutely nothing to contribute is irrelevant. Hey, Ma! I’m on TV!!!
Now comes an opportunity to say a few words to the journalists, a pretentious word in itself, about their source of information. Understand that the journalist, foundationally, is there to write, read, report. He is not the expert on the subject at hand, but sufficiently adept at reporting about things unknown to him to earn his pay. And so the reporters turn to others for the color and expertise. Time constraints demand that they cut a 27 minute explanation down to 10 seconds, but that’s perfect give our attention span. Like twitter, the sound bite is an art.
But it similarly requires the journalist to have one additional skill, and a critical one at that. To be capable of identifying a credible source of information as opposed to a warm body with a law degree or a blog. Aye, there’s the rub.”
What belies the 21st century ‘post-literate society’ is that no matter how great the leaps and bounds of technology, there remains an existential divide between information, knowledge and wisdom. It is not enough to simply “Google it” or get IBM”s Watson to answer the question for you. You have to ask the right questions to find the right answer to uncover the truth. As Descartes observed: “Ac proinde hæc cognitio, ego cogito, ergo sum, est omnium prima & certissima, quæ cuilibet ordine philosophanti occurrat.” (“This proposition, I think, therefore I am, is the first and the most certain which presents itself to whomever conducts his thoughts in order.”). Trust, but verify.
Governments and traditional media control the flow of information—the former regulate the flow of information while the latter filter the news.
Real Bloggers and Blawgers (i.e. those who are not paid for their content) play a key mediating role between governments and corporate media. If speech is free, then it’s either priceless or worthless. I choose to believe free speech doesn’t come with a price tag.