But no allusion to any website is made in the Times's news account of Judge Torres's decision, and no glimmer of his extensive and thoughtful defense of his position survives in the Times's rendering (see below).
Judge Torres's Dec. 9 decision is the one in which he sentences Jim Taricani, a reporter whom he had previously found guilty of criminal contempt of court. Taricani, a reporter for WJAR-TV, an NBC affiliate, had refused to identify the source who illegally gave him a videotape secretly recorded by the FBI. The tape, showing a corrupt politician receiving a cash bribe, had been broadcast by Taricani's station.
The Times's coverage of the case has exuded all the arrogance of entrenched power. A Times editorial tells readers what to believe -- that Taricani's prosecution is part of a "widening judicial assault on freedom of the press"[1] -- while obscuring the central issues so readers cannot judge the matter for themselves. The Times's news reports on the matter have been equally obscure.[2]
The Times is pushing its own interest -- not, as they would have readers believe, the public interest. The Times, in other words, is just another special interest -- peddling distortions to promote its own worldly advantages.
In contrast to the Times's articles, Judge Torres's opinion addresses the issues and offers honest, sincere reasoning that makes sense and that a reader can understand.
The Times's news reports and editorials on the matter have consistently concealed the central point that no worthwhile public interest was served by Taricani's broadcast of confidential information. At the same time, the Times's mendacious editorials have deliberately sought to create the impression that Taricani was exposing corruption ("imprisonment of Mr. Taricani could have a chilling effect on journalism's ability to expose corruption") and that freedom of the press is under "assault."[3] Judge Torres rebuts these misrepresentations directly, clearly, and thoroughly. I can do no better than to quote further from his Dec. 9 decision:
[Note: the all-caps format here is how the original text on the court's website is formatted.]
THE ISSUES IN THIS CASE HAVE BEEN OBSCURED AND DISTORTED BY A NUMBER OF MYTHS THAT HAVE BEEN CREATED BY SPIN AND MEDIA HYPE, AND I'M GOING TO TAKE A FEW MOMENTS NOW TO ADDRESS THESE MYTHS AND ATTEMPT TO DISPEL THEM. I'M VERY AWARE OF THE ADVICE THAT WAS GIVEN, I BELIEVE IT WAS BY FORMER MAYOR CIANCI, IRONICALLY ENOUGH, WHO SAYS, "YOU SHOULD NEVER ARGUE WITH ANYONE WHO BUYS INK BY THE BARREL." NOR ANYONE WHO OWNS A T.V. OR RADIO STATION, I THINK HE WOULD AGREE. THAT'S GENERALLY GOOD ADVICE, BUT THERE ARE TIMES WHEN ONE HAS TO ARGUE WITH PEOPLE WHO OWN STATIONS AND BUY INK BY THE BARREL.
THE FIRST MYTH IS THAT THE PROMISE OF CONFIDENTIALITY THAT WAS MADE IN THIS CASE ENABLED MR. TARICANI TO UNCOVER CORRUPTION IN CITY HALL THAT OTHERWISE WOULD HAVE GONE UNPUNISHED OR THAT THE PUBLIC WOULDN'T HAVE KNOWN ABOUT. IT IS VERY CLEAR THAT IN THIS CASE NEITHER THE SOURCE NOR MR. TARICANI UNCOVERED ANY EVIDENCE OF CORRUPTION. THE TAPE THAT WAS BROADCAST ON CHANNEL 10 WAS MADE BY THE FBI, NOT BY THE SOURCE, NOT BY MR. TARICANI. THE TAPE WAS ALSO KEY EVIDENCE IN THE PROSECUTION THAT ALREADY WAS WELL UNDERWAY. SEVERAL DEFENDANTS HAD ALREADY BEEN INDICTED AND WERE SCHEDULED FOR TRIAL. THE TAPE WAS GOING TO BE PLAYED AT THE UPCOMING TRIAL, AND MR. TARICANI HIMSELF ACKNOWLEDGES KNOWING THIS.
MR. TARICANI MADE A PROMISE OF CONFIDENTIALITY TO OBTAIN THE TAPE. ALL THAT THAT PROMISE ACCOMPLISHED, BESIDES CREATING THIS SAD STATE OF AFFAIRS IN WHICH WE FIND OURSELVES TODAY, WAS TO PROVIDE MR. TARICANI AND HIS STATION WITH A SCOOP DURING SWEEPS WEEK. IT DID SO AT THE COST OF THREATENING TO COMPROMISE THE ONGOING GRAND JURY INVESTIGATION AND THREATENING TO DEPRIVE THE DEFENDANTS OF THEIR CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY POISONING THE PROSPECTIVE JURY POOL.
THE SECOND MYTH IN THIS CASE IS THE MYTH THAT REQUIRING DISCLOSURE OF MR. TARICANI'S SOURCE IN THIS CASE WILL DETER FUTURE SOURCES FROM COMING FORWARD WITH INFORMATION THAT THE PUBLIC OUGHT TO KNOW, AND WILL CHILL REPORTERS FROM USING CONFIDENTIAL SOURCES. FIRST, THAT CLAIM GREATLY DISTORTS THE PRINCIPAL ISSUE IN THIS CASE. THE ISSUE IN THIS CASE IS NOT WHETHER THE CONFIDENTIALITY OF A REPORTER'S SOURCE EVER MAY BE PROTECTED. COURTS HAVE CONSISTENTLY SAID THAT THERE ARE CIRCUMSTANCES UNDER WHICH A REPORTER SHOULD NOT BE REQUIRED TO REVEAL THE IDENTITY OF THE SOURCE. THE ISSUE IN THIS CASE IS WHETHER A REPORTER HAS A RIGHT TO CONCEAL THE IDENTITY OF A SOURCE WHO COMMITTED A CRIMINAL ACT IN PROVIDING MATERIAL TO THE REPORTER -- ESPECIALLY WHEN, AS APPEARS TO BE THE CASE HERE, THE REPORTER (1) KNEW AT THE TIME THAT THE SOURCE WAS ACTING UNLAWFULLY, (2) ACTUALLY ENCOURAGED THE SOURCE BY MAKING A PROMISE OF CONFIDENTIALITY, AND (3) AIDED AND ABETTED THE SOURCE BY PUBLISHING OR AIRING THE TAPE WITH THAT KNOWLEDGE.
NOW, IT MAY BE THAT REQUIRING A REPORTER TO IDENTIFY THE PRESUMABLY AND HOPEFULLY RARE SOURCE WHO VIOLATES THE LAW IN PROVIDING INFORMATION MAY MAKE IT SLIGHTLY MORE DIFFICULT FOR A REPORTER TO DO HIS JOB OF GATHERING AND DISSEMINATING WHAT THE REPORTER VIEWS AS NEWS. BUT A REPORTER'S JOB IS ALSO MADE MORE DIFFICULT BY LAWS THAT PROHIBIT REPORTERS, LIKE ANYONE ELSE, FROM BREAKING INTO PEOPLE'S HOMES IN ORDER TO OBTAIN NEWSWORTHY DOCUMENTS, OR ILLEGALLY TAPPING PEOPLE'S TELEPHONES IN ORDER TO OBTAIN EVIDENCE OF PUBLIC CORRUPTION OR ANY OTHER NEWSWORTHY INFORMATION. I HOPE WE CAN ALL AGREE THAT REPORTERS HAVE NO PRIVILEGE TO ENGAGE IN SUCH CONDUCT UNDER THE FIRST AMENDMENT. IT'S DIFFICULT TO SEE HOW ONE CAN JUSTIFY ANY PRIVILEGE ON THE PART OF A REPORTER TO ENCOURAGE OR ASSIST OTHERS IN ENGAGING IN THAT KIND OF CONDUCT. THE DIFFICULTIES OF COMPLYING WITH LEGAL CONSTRAINTS ARE THE PRICE WE PAY FOR LIVING IN A SOCIETY GOVERNED BY THE RULE OF LAW, AND I SUGGEST THAT IT'S A SMALL PRICE TO PAY. IF SOMEONE VIOLATES THE LAW BY REVEALING TO A REPORTER THE IDENTITY OF AN UNDERCOVER INTELLIGENCE OR LAW ENFORCEMENT OFFICER, THEREBY ENDANGERING THE OFFICER'S LIFE, THAT PERSON OUGHT TO BE PUNISHED AND OTHERS TEMPTED TO DO THE SAME OUGHT TO BE DETERRED. UNDER THOSE CIRCUMSTANCES A REPORTER SHOULD HAVE NO RIGHT TO CONCEAL THE IDENTITY OF THAT PERSON.
SIMILARLY, IF, AS IN THIS CASE, A SOURCE VIOLATES THE LAW BY PROVIDING A REPORTER WITH TAPES, PUBLICATION OF WHICH THREATENS TO COMPROMISE A GRAND JURY INVESTIGATION OF SERIOUS CRIME OR TO DEPRIVE DEFENDANTS ACCUSED OF THOSE CRIMES OF THEIR CONSTITUTIONAL RIGHT TO A FAIR TRIAL, THAT SOURCE OUGHT TO BE PUNISHED AND OTHERS TEMPTED TO DO THE SAME OUGHT TO BE DETERRED, AND THE REPORTER HAS NO RIGHT TO CONCEAL THE SOURCE'S IDENTITY.
AND I WOULD SUBMIT THAT A REPORTER SHOULD BE CHILLED FROM VIOLATING THE LAW IN ORDER TO GET A STORY, AND -- I'M NOT SAYING THAT MR. TARICANI DID THAT HERE -- FROM MAKING ILL-ADVISED PROMISES OF CONFIDENTIALITY THAT ENCOURAGE OTHERS TO DO SO, AND FROM AIDING AND ABETTING THEM. THE SOURCE SHOULD BE CHILLED FROM ENGAGING IN THAT KIND OF CONDUCT, AND I THINK IT'S PROPER IN THOSE CIRCUMSTANCE TO CHILL THE REPORTER FROM ASSISTING OR ENCOURAGING THAT KIND OF CONDUCT. THE FACT THAT THE REPORTER MAY HAVE MADE WHAT TURNS OUT TO HAVE BEEN A RECKLESS OR ILL-ADVISED PROMISE OF CONFIDENTIALITY MAY CREATE A DILEMMA FOR THE REPORTER, BUT IT DOESN'T PROVIDE ANY LEGAL JUSTIFICATION FOR CONCEALING THE PERPETRATOR'S IDENTITY. THAT'S AN ISSUE THAT THE REPORTER OUGHT TO CONFRONT AND DEAL WITH AND RESOLVE BEFORE MAKING THE PROMISE.
THE THIRD MYTH IS THE MYTH THAT MR. TARICANI IS BEING PUNISHED FOR JUST DOING HIS JOB. THERE IS NO QUESTION THAT A REPORTER'S JOB IS A VERY IMPORTANT AND HONORABLE JOB, BUT THIS IS STILL A MYTH UNLESS ONE DEFINES A REPORTER'S JOB AS GATHERING INFORMATION OBTAINED BY OTHERS BY ILLEGAL MEANS AND EVEN ENCOURAGING AND ASSISTING OTHERS IN DOING SO, AND THEN CONCEALING THE IDENTITY OF THE INDIVIDUAL WHO VIOLATED THE LAW IN ORDER TO PROVIDE THE INFORMATION. MR. TARICANI WAS NOT FOUND GUILTY OF CRIMINAL CONTEMPT IN THIS CASE FOR AIRING THE TAPE. WHAT HE WAS FOUND GUILTY OF CONTEMPT FOR WAS REFUSING TO COMPLY WITH A LAWFUL COURT ORDER THAT HE HAD THE OPPORTUNITY TO APPEAL, AND THAT WAS AFFIRMED WHEN HE DID APPEAL -- AN ORDER DIRECTING HIM TO IDENTIFY THE PERSON WHO COMMITTED THE UNLAWFUL ACT THAT THREATENED TO DEPRIVE VARIOUS DEFENDANTS OF THEIR CONSTITUTIONAL RIGHT TO A FAIR TRIAL, WHICH IS THE VERY HEART OF OUR CRIMINAL JUSTICE SYSTEM AND SHOULD BE OF CONCERN TO EVERYONE, INCLUDING REPORTERS.
THE FINAL TWO MYTHS ARE PERHAPS THE MOST TROUBLING BECAUSE THEY DISPLAY WHAT IN MY VIEW AT LEAST IS EITHER A COMPLETE MISUNDERSTANDING OF SOME OF THE MOST FUNDAMENTAL PRINCIPLES OF OUR CONSTITUTION AND CRIMINAL JUSTICE SYSTEM, OR AN ATTEMPT TO SPIN THIS MATTER IN A WAY THAT DISTORTS THOSE PRINCIPLES, AND I DON'T KNOW WHICH OF THOSE WOULD BE OF MORE CONCERN.
THE FOURTH MYTH IS THAT EVERY REPORTER HAS AN ABSOLUTE RIGHT TO BE THE SOLE ARBITER OF WHETHER THE IDENTITY OF A SOURCE SHOULD REMAIN CONFIDENTIAL NO MATTER WHAT THE LAW OR THE COURTS MAY SAY.
THIS MYTH HAS NOT BEEN PROPAGATED IN THOSE TERMS. ON THE CONTRARY, SINCE MR. TARICANI AND HIS ADVOCATES -- I'M NOT REFERRING TO COUNSEL HERE BUT TO HIS COLLEAGUES, OR SOME OF HIS COLLEAGUES -- SINCE THEY APPARENTLY RECOGNIZE THAT THAT PROPOSITION IS COMPLETELY INDEFENSIBLE, IT HAS BEEN DISCLAIMED. THEY PURPORT TO RECOGNIZE THAT THERE MAY BE CIRCUMSTANCES UNDER WHICH A REPORTER SHOULD REVEAL THE IDENTITY OF A SOURCE, AND THEY SUGGEST OR IMPLY THAT THOSE CIRCUMSTANCES MIGHT INCLUDE CASES IN WHICH NATIONAL SECURITY IS INVOLVED OR LIVES ARE AT STAKE. BUT THAT DOESN'T ALTER THE FACT THAT WHAT THEY ARE REALLY CLAIMING IS THAT A REPORTER HAS A RIGHT TO UNILATERALLY DECIDE WHAT THOSE CIRCUMSTANCES ARE. THEY CONCEDE THAT THOSE CIRCUMSTANCES MIGHT INCLUDE CASES, AS I'VE SAID, IN WHICH NATIONAL SECURITY IS INVOLVED OR LIVES ARE AT STAKE, BUT THEY CLAIM TO BE THE SOLE ARBITER OF WHEN THOSE CIRCUMSTANCES EXIST. AND APPARENTLY SOME OF THEIR COLLEAGUES DO NOT BELIEVE THAT NATIONAL SECURITY WAS INVOLVED OR LIVES WERE AT STAKE IN THE VALERIE PLAME CASE, FOR EXAMPLE, WHERE IT WAS ALLEGED THAT THE LIFE OF AN UNDERCOVER CIA AGENT WAS THREATENED WHEN A CONFIDENTIAL SOURCE ILLEGALLY REVEALED HER IDENTITY TO REPORTERS AS A MEANS OF GETTING BACK AT HER HUSBAND. AND, OBVIOUSLY, AS THIS CASE DEMONSTRATES, THEY DO NOT BELIEVE THAT PUNISHING AND DETERRING CRIMINAL ACTS THAT THREATEN THE FUNDAMENTAL CONSTITUTIONAL RIGHTS OF OTHERS PROVIDE A SUFFICIENT REASON FOR REVEALING THE IDENTITY OF A SOURCE.
I THINK THAT PROVIDES AN APT ILLUSTRATION OF WHY IT IS CONTRARY TO THE PUBLIC INTEREST TO VEST SUCH EXCLUSIVE AND UNREVIEWABLE AUTHORITY IN INDIVIDUAL REPORTERS. OUR SYSTEM OF CONSTITUTIONAL GOVERNMENT ULTIMATELY VESTS THAT AUTHORITY IN THE COURTS, JUST AS IT DOES WITH EVERY OTHER LEGAL ISSUE OF PUBLIC IMPORTANCE. DESPITE THE GREAT RESPECT THAT I HAVE FOR THOSE MANY REPORTERS WHO CONSCIENTIOUSLY SEEK TO GATHER THE NEWS AND REPORT IT FAIRLY AND ACCURATELY, IT IS NOT AND SHOULD NOT BE UP TO INDIVIDUAL REPORTERS TO MAKE THE ULTIMATE DECISION IN CASES WHERE IT BECOMES AN ISSUE.
THERE ARE A NUMBER OF REASONS WHY IT SHOULD NOT BE UP TO THEM. ONE IS THAT NOT ALL REPORTERS LIVE UP TO THOSE STANDARDS. FORTUNATELY, MOST DO, BUT THERE ARE SOME WHO DON'T. AND IF THE ULTIMATE DECISION WERE MADE BY EACH INDIVIDUAL REPORTER, WE WOULD HAVE AS MANY STANDARDS AS THERE ARE REPORTERS. IT'S ALSO A BAD IDEA BECAUSE REPORTERS ARE REQUIRED TO ACT ON THE SPUR OF THE MOMENT, THEY'RE UNDER COMPETITIVE PRESSURE TO GET A STORY OR A SCOOP, AND THEY MIGHT NOT KNOW ALL OF THE RELEVANT FACTS. IT DEFIES LOGIC AND COMMON SENSE, AS WELL THE LAW, TO SAY THAT A PROMISE OF CONFIDENTIALITY MADE UNDER SUCH CIRCUMSTANCES SHOULD BE ABSOLUTE AND UNREVIEWABLE BY A COURT OR ANYONE ELSE. IN CASES WHERE THE ISSUE ARISES, THE QUESTION OF CONFIDENTIALITY IS ONE THAT MUST BE REVIEWABLE BY A COURT. THE COURT IS IN THE POSITION TO HEAR ALL THE FACTS. THE COURT IS IN A POSITION TO DETERMINE THE APPLICABLE LAW AND TO BALANCE ANY COMPETING PUBLIC INTERESTS THAT WOULD BE IMPLICATED BY DISCLOSURE VERSUS NONDISCLOSURE. AND A COURT'S DECISION IS REVIEWABLE, IN TURN, BY A HIGHER COURT.
SO JUST AS I AM ILL-EQUIPPED TO GATHER AND REPORT THE NEWS, SO IS AN INDIVIDUAL REPORTER ILL-EQUIPPED TO MAKE THE ULTIMATE DECISION AS TO WHETHER A SOURCE IS ENTITLED TO ANONYMITY, ESPECIALLY WHERE, AS HERE, THE SOURCE HAS COMMITTED A CRIMINAL ACT.
I WANT TO MAKE IT CLEAR THAT I'M NOT SAYING OR SUGGESTING THAT IT IS NEVER APPROPRIATE TO ACCORD CONFIDENTIALITY TO A REPORTER'S SOURCE. I THINK I'VE SAID THAT COURTS HAVE CONSISTENTLY SAID THAT THERE ARE CASES WHERE THAT IS APPROPRIATE. THE ISSUE HERE IS WHO DECIDES THAT AND UNDER WHAT CIRCUMSTANCES.
THE FIFTH MYTH OR LAST MYTH IS THE MYTH THAT ORDERING MR. TARICANI TO REVEAL HIS SOURCE IS AN ASSAULT ON THE FIRST AMENDMENT. THAT IS PERHAPS THE BIGGEST AND MOST MISLEADING MYTH OF ALL. THE FIRST AMENDMENT PROTECTS THE RIGHT OF REPORTERS, AND THOSE WHO OWN MEDIA OUTLETS OR NEWSPAPERS, TO PUBLISH WHAT THEY CHOOSE TO PUBLISH WITHOUT CENSORSHIP BY THE GOVERNMENT. THE FIRST AMENDMENT DOES NOT CONFER ON REPORTERS OR ANYONE ELSE THE RIGHT TO VIOLATE THE LAW IN ORDER TO GET INFORMATION THAT THEY MIGHT CONSIDER NEWSWORTHY, THE RIGHT TO ENCOURAGE OTHERS TO DO SO, OR THE RIGHT TO CONCEAL THE IDENTITY OF A SOURCE WHO COMMITTED A CRIMINAL ACT IN PROVIDING THE INFORMATION BY REFUSING TO COMPLY WITH A LAWFUL COURT ORDER DIRECTING THE REPORTER TO IDENTIFY THE SOURCE.
TO SUGGEST THAT THESE THINGS ARE PROTECTED BY THE FIRST AMENDMENT DEMEANS THE FIRST AMENDMENT. AND WHILE, AS I SAID, COURTS HAVE AFFORDED PROTECTION TO THE CONFIDENTIALITY OF REPORTERS' SOURCES IN CASES WHERE THERE IS NO SUFFICIENT REASON TO REQUIRE DISCLOSURE, THIS IS NOT ONE OF THOSE CASES. UNDER THE CIRCUMSTANCES IN THIS CASE, IT'S CRYSTAL CLEAR THAT MR. TARICANI HAD NO PRIVILEGE, UNDER THE FIRST AMENDMENT OR OTHERWISE, TO DISOBEY THE ORDER DIRECTING HIM TO IDENTIFY THE SOURCE THAT PROVIDED HIM WITH THIS TAPE. AS THE SUPREME COURT EXPRESSLY HELD IN THE BRANZBURG CASE, "A REPORTER HAS NO PRIVILEGE UNDER THE FIRST AMENDMENT OR OTHERWISE TO REFUSE TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL SOURCE TO A GRAND JURY INVESTIGATING A CRIME WHEN THAT INFORMATION IS RELEVANT TO THE INVESTIGATION, BECAUSE THE PUBLIC INTEREST AND EFFECTIVE LAW ENFORCEMENT OVERRIDES ANY INCIDENTAL BURDEN THAT DISCLOSURE MAY IMPOSE ON NEWS-GATHERING ACTIVITIES."
IN THIS CASE, MR. TARICANI APPEALED THIS COURT'S ORDER, AS HE HAD EVERY RIGHT TO DO, AND THE ORDER WAS AFFIRMED BY THE COURT OF APPEALS. IT'S INTERESTING TO NOTE THAT THE APPEAL FOCUSED MORE ON WHETHER IT WAS PROPER TO REFER THIS MATTER TO A SPECIAL PROSECUTOR, RATHER THAN ON ANY FIRST AMENDMENT ISSUE. IT ALSO APPEARS THAT THERE WAS NO ATTEMPT MADE TO GET THE SUPREME COURT TO REVIEW THE CASE. I SUSPECT THAT THE REASON FOR THOSE DECISIONS WAS THAT COUNSEL RECOGNIZED THAT UNDER THE FACTS OF THIS CASE, THEY COULD NOT PREVAIL ON THE FIRST AMENDMENT CLAIM.
IT'S DISINGENUOUS TO CLAIM THAT REQUIRING THE REPORTER TO REVEAL HIS SOURCE UNDER THESE CIRCUMSTANCES CONSTITUTES AN ASSAULT ON THE FIRST AMENDMENT. THERE ARE SEVERAL ASSAULTS HERE, BUT NONE IS AN ASSAULT ON THE FIRST AMENDMENT. THE ASSAULTS WE HAVE HERE ARE ASSAULTS ON THE RULE OF LAW, ASSAULTS ON THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE, AND ASSAULTS ON THE CONSTITUTIONAL RIGHT OF A DEFENDANT TO A FAIR TRIAL. THERE'S AN ASSAULT ON THE PRINCIPLE THAT LAWFUL COURT ORDERS MUST BE OBEYED, AND THAT ASSAULT TAKES THE FORM OF EXPRESS OR IMPLIED CLAIMS THAT IT WAS OKAY TO PROMISE CONFIDENTIALITY TO THE SOURCE WHO PROVIDED INFORMATION IN VIOLATION OF A PROTECTIVE ORDER, EVEN IF AT THE TIME THE REPORTER KNEW THAT IT WAS A VIOLATION FOR THE SOURCE TO HAVE PROVIDED THAT INFORMATION.
THERE IS ALSO AN EXPRESS OR IMPLIED CLAIM HERE THAT THE FACT THAT THE ORDER WAS VIOLATED IS NOT IMPORTANT ENOUGH TO WARRANT PURSUING THE MATTER NOW THAT THE CASE IS OVER. THERE'S THE IMPLICATION THAT IT WAS OKAY, EVEN LAUDABLE, FOR MR. TARICANI TO REFUSE TO COMPLY WITH THE ORDER BECAUSE HE HAS WHAT HE THINKS IS A GOOD REASON. THERE'S AN ASSAULT HERE ON THE PRINCIPLE THAT UNDER OUR SYSTEM OF GOVERNMENT, LEGAL QUESTIONS AND QUESTIONS OF CONSTITUTIONAL DIMENSION THAT AFFECT THE PUBLIC INTEREST MUST BE DECIDED BY AN IMPARTIAL COURT AFTER WEIGHING ALL OF THE RELEVANT FACTS AND NOT BY INTERESTED INDIVIDUALS MAKING SPUR OF THE MOMENT JUDGEMENTS.
JUST AS A POLICE OFFICER HAS NO RIGHT, AND CERTAINLY NOT AN ABSOLUTE AND UNREVIEWABLE RIGHT, TO DETERMINE WHETHER A SEARCH AND SEIZURE VIOLATES THE PROVISIONS OF THE FOURTH AMENDMENT, NEITHER DOES A REPORTER HAVE AN ABSOLUTE AND UNREVIEWABLE RIGHT TO ULTIMATELY DETERMINE WHETHER A SOURCE IS ENTITLED TO CONFIDENTIALITY. THOSE DECISIONS, ULTIMATELY, HAVE TO BE MADE BY A COURT.
THERE'S AN ASSAULT IN THIS CASE ON THE ABILITY OF GRAND JURIES AND OTHER DULY AUTHORIZED INVESTIGATIVE BODIES TO EFFECTIVELY INVESTIGATE CRIMES, AND ON THE ABILITY OF PROSECUTORS TO EFFECTIVELY PROSECUTE THEM. IF INDIVIDUALS SUBPOENAED TO TESTIFY OR PRODUCE DOCUMENTS BEFORE A GRAND JURY OR AT TRIAL DIDN'T HAVE TO COMPLY EVEN AFTER BEING ORDERED BY A COURT, IT'S PRETTY OBVIOUS THAT THE ABILITY OF GRAND JURIES AND PROSECUTORS TO INVESTIGATE AND PROSECUTE CRIMES WOULD BE SEVERELY COMPROMISED, TO SAY THE LEAST.
AND, FINALLY, THIS IS AN ASSAULT ON THE CONSTITUTIONAL RIGHT OF CRIMINAL DEFENDANTS TO A FAIR TRIAL. IN CLAIMING THAT IT'S OKAY IF SOURCES UNLAWFULLY LEAK EVIDENCE THAT THREATENS A DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WITHOUT FEAR OF BEING IDENTIFIED BY THE ONLY PERSON WHO KNOWS WHO THAT INDIVIDUAL IS. IT'S VERY UNFORTUNATE, IN MY VIEW, THAT SOME WHO HAVE NEVER EXPERIENCED THE TRAUMA OF BEING ACCUSED OF A CRIME HAVE DIFFICULTY UNDERSTANDING THAT A FAIR TRIAL BEFORE AN IMPARTIAL JURY IS A VERY PRECIOUS RIGHT TO HAVE.
NOW THAT I'VE HAD MY SAY ON THOSE POINTS, WE'RE GOING TO PROCEED TO THE SENTENCING ASPECT OF THIS CASE. I'M VERY SADDENED AND DISAPPOINTED BY WHAT'S HAPPENED IN THIS CASE.... BUT WHAT'S AT STAKE HERE IS THE RULE OF LAW AND THE CONSTITUTIONAL RIGHT OF A PERSON CHARGED WITH A CRIME TO RECEIVE A FAIR TRIAL, AND I HAVE AN OBLIGATION TO DEFEND BOTH.
NO ONE IS ABOVE THE LAW -- NOT PRESIDENTS, NOT REPORTERS. LIKE ALL CITIZENS, A REPORTER MUST ABIDE BY WHAT THE CONSTITUTION AND THE LAWS SAY, AND NOT BY WHAT HE THINKS THEY SAY OR THINKS THEY SHOULD SAY. YOU'VE SAID THAT YOU BELIEVE YOU WERE JUST DOING YOUR JOB, MR. TARICANI, AND NOW I HAVE TO TRY AND DO MY JOB.
[Judge Torres proceeds to sentence Taricani to six months confinement, to be served in Taricani's home because of serious health ailments. This is an edited excerpt of Judge Torres's Dec. 9 judgement, obtained from court website as indicated above.]
The New York Times reports Judge Torres's Dec. 9 decision in a Dec. 10 news article -- Reporter Who Shielded Source Will Serve Sentence at Home. Here in its entirety is the portion of the article that describes the reasoning Judge Torres gives in his decision:
As Safire bizarrely acknowledges, no privilege is absolute. Rights must be balanced. Judge Torres explained quite thoroughly how society has an interest in identifying who leaked the FBI tape to Taricani. What countervailing interest does society have in Taricani's news report, or in supporting his unwarranted promise to his source to keep him anonymous? Safire offers no explanation.
The only way "common sense" could favor Taricani's right to remain silent would be if it is misled by the blatant lie that Safire & co. are striving to perpetuate -- that Taricani was prosecuted for defending "a citizen's right to know about wrongdoing."