Media Mutt

I’m Special, You’re Not
That’s because journalists enjoy more rights than ordinary people

by Al Diamon

If you’re an average American, and you have the bad fortune to get hauled into court, you have no legal recourse when it comes to avoiding uncomfortable questions from attorneys and judges (save the Fifth Amendment’s right against self-incrimination). You’ll answer, promptly and truthfully, or you’ll be held in contempt and thrown in jail.

Not me, though. I’m a journalist (at least it says so on my income tax form), and when the lords of the law demand that I reveal how and from whom I obtained information for my stories, I can, with impunity, tell them to pound sand. Since 2008, Maine has had a shield law that sorta, kinda protects me from answering questions that you little folks have no barrier against (although at least one federal court has ruled otherwise in connection with national security cases).

If you think that makes me appear arrogant and privileged, you can kiss my statutorily shielded ass.

(Of course, there’s also a drawback to Maine’s shield law, in that it permits a judge to decide who is and isn’t a journalist for legalistic purposes. Which is sort of like government licensing of reporters and editors. Which is distinctly creepy.)

The possibility of compelled testimony isn’t the only legal regulation from which my ilk is exempt. In many trials, witnesses are not allowed in the courtroom until it’s time for them to testify. That’s to prevent them from hearing what others have said and possibly altering what they have to say as a result. This sequestration is a common-sense rule to help ensure a fair trial. Who could possibly have a problem with that?

Journalists, that’s who. In June, when it appeared that Boston Herald columnist Howie Carr would be excluded from the trial of notorious gangster Whitey Bulger because Bulger’s defense had named him as a potential witness, Carr and his newspaper furiously objected. And the judge rolled right over and allowed him in, even though there were numerous valid reasons to keep him out, including business ties to other witnesses. But those sorts of quibbles are nothing compared to the fact that Carr isn’t just a journalist, he’s a celebrity journalist. He’s got a popular radio show. Carr has written books about Bulger and his associates. Excluding him would make it tough for him to compile his next best-seller. And anyway, the judge had already decided to allow two well-known Boston Globe staffers, who’d written their own Bulger book and were also potential defense witnesses, to sit in on all the proceedings.

Do you think any ordinary shmoe would get this kind of special consideration? Don’t make me chuckle in a condescending manner.

Of course, the special status news organizations enjoy can be both a blessing and a curse. In addition to getting media members prime seating at trials and other entertaining events, it can also attract unwanted attention. This spring, it was revealed that the federal government had seized phone records from the Associated Press and read the e-mail file of a Fox News reporter in an attempt to track down the sources of leaks of sensitive information.

They don’t do that stuff to ordinary people.

Oh wait, yes they do. It turns out the National Security Agency has been routinely monitoring your communications for years, but unlike the AP and Fox, you don’t have your very own national platform to gripe about it. As a result of news media whining, the U.S. Attorney General’s office announced last month that it would limit searches of big-time news organizations to criminal investigations, would first get a search warrant, and in most cases would notify the journalists they had had their records subpoenaed.

Members of Congress and the Obama administration, ever ready to suck up to the media, immediately moved to put those protections into statute.

As for electronic surveillance of members of the proletariat, that will continue just as before. No probable cause. No warrants. No notification. Nevertheless, it warms the elitist hearts of those of us in journalism’s ivory tower to know that, in your primitive way, you share our pain. Even if we don’t much care about yours.

As we all know, the U.S. Constitution grants every American certain inalienable rights. You plebeians get the right not to have soldiers quartered in your homes (the Third Amendment), protection against cruel and unusual punishment (the Eighth Amendment) and the right to confront witnesses against you at a trial that must be held without unreasonable delay (the Sixth and Seventh Amendments). We in the news media are content to keep the entire First Amendment to ourselves.

Well, not really, but you could be excused for thinking so by the way we represent that section of our fundamental law in stories. The actual amendment prohibits Congress from establishing a religion or preventing the free exercise thereof. It allows people — even the most ordinary ones — to peacefully assemble and to petition government for redress of grievances. It establishes freedom of speech. And as sort of an adjunct to that, freedom of the press.

Somehow, it’s only that last one that gets any serious attention from reporters and editors. Religion, speech and assembly might receive occasional passing nods, but when the media mentions the First Amendment, it’s almost always in reference to a free press. The government could suddenly mandate punishing wrongdoers by sacrificing their babies in the name of Satan, but as long as the bureaucrats don’t try to deny our constitutional right to cover the bloodletting via streaming live video, we’re cool with it.

The thing we’re not cool with is the attitude of the great unwashed toward the news media. According to the Pew Research Center for People and the Press, you don’t think we’re as credible as we used to be. Or as useful as we used to be.

You might think that those disturbing trends would give us pause. You might think they’d make us reassess our approach and attitude. You might suppose that the recession and the shift to new media, resulting in the loss of thousands of journalism jobs, would make those of us who survived the purge a little more humble.

You’d be wrong. We who still have jobs have somehow convinced ourselves that we avoided the ax because we’re the best of our profession (and in no way because we’re willing to work for next to nothing). Humble? Quite the opposite.

So the least we can do in response to your lack of appreciation and loyalty is aspire to be as indifferent to what you think as we always have been. “American journalism (like the journalism of any other country) is predominantly paltry and worthless,” the great newspaper and magazine editor H.L. Mencken wrote about a century ago. “Its pretensions are enormous, but its achievements are insignificant.”

As should have been obvious to you fools, we in the news media aren’t getting more arrogant. We’re just upholding a grand tradition.


Al Diamon can be emailed at


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