November 22, 2021

SUICIDE BY SILENCE?  It’s no secret by now that corporate media has no problem demonizing or delegitimizing what they perceive as “right-wing” media. Tucker Carlson, once America’s favorite conservative, is now depicted as pure evil, somewhere to the right of Genghis Khan. In fact, the phrase “right-wing” itself is attached to the name of some outlets as a sign by left-leaning media to signal to readers that their readers should immediately ignore whatever factual information that the outlet might be presenting, much the same way hoboes in the 1930’s would leave chalk marks on the street in front of houses to warn others of a dangerous approach, say, a jealous husband with a shotgun or a mean dog.

The Biden government has this week presented that same corporate media with a moral dilemma that, if ignored by corporate media, may be a form of suicide. The Associated Press reported this morning that in opposing James O’Keefe and Project Veritas’ motion to designate a Special Master to review the documents seized by the FBI in an early November raid, federal prosecutors told the court that the motion should be denied, in part because:

“Project Veritas is not engaged in journalism within any traditional or accepted definition of that word. Its ‘reporting’ consists almost entirely of publicizing non-consensual, surreptitious recordings made though unlawful, unethical, and or/dishonest means.”

Of course, we ought to be free to dislike — or even disparage — any outlet or voice with which we disagree. That goes for Alex Jones and Rachael Maddow alike. But the mainstream media has a dog in this fight, whether they like it or not: the use of hidden cameras or surreptitiously obtained audio has become not just a staple of investigative reporting, but a moneymaker for outlets who normally express a disdain for any platform that publishes material they deem “non-woke” or “right-wing” or otherwise offensive to their sensibilities.

There are two streams of thought that ought to encourage corporate media to take an aggressive stand in O’Keefe’s defense. One is the stream that flows from no lesser an authority than the U.S. Supreme Court, in a line of cases from Bartnicki v. Vopper, where a third-party had published allegedly illegally obtained material with no hand in the illegal acquisition of the material. Professor Jane Kirtley of the University of Minnesota and former director of the Reporters Committee for Freedom of the Press is far from being a conservative, but in an opinion piece published today expressed the all-too-rare quality of an honest liberal putting principle before preferences. Her dislike of Project Veritas is made clear right up front:

“Many journalists repudiate Project Veritas and its methods, contending that the organization is ideologically driven and routinely violates established norms of media ethics. As a professor of media ethics and law, I’ve been grappling with how to think about Project Veritas and its escapades for years. Like many media lawyers, I wish it would just go away.”

But Kirtley knows — and most laudably — expresses her respect for the Constitution and the Rule of Law. She continues to say, quoting Bartnicki, that :

“A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” Justice John Paul Stevens wrote. If Project Veritas was not involved in the theft of the diary, it could also be covered by the Privacy Protection Act of 1980, which bars both federal and state law enforcement from seizing journalists’ work product and documentary materials except in very limited circumstances.

In fact, the Justice Department has been prohibited from even subpoenaing journalists by Attorney General guidelines that date back to 1974 – although investigations into leaks of classified information led to notable exceptions to this rule during the Obama and Trump administrations […] If Project Veritas is found guilty of a crime, any journalist who transports leaked or “stolen” information across state lines could be charged with violation of the law. It’s unclear what that means today when so many documents are transmitted electronically. Or, if the government narrowly defines “the press” based on its political outlook or ethics, then no news organization is safe from attacks by future administrations.”

Kirtley is correct, of course, in that allowing O’Keefe to be defined as a journalist simply because of his political agenda or outlook creates an unsafe (I’d say soviet) future for journalism. But another stream runs down the same mountain that ought to encourage outrage from the press and cause a serious re-think from the Biden administration, to whom the Justice Department ultimately answers.

Corporate media has made millions of dollars and spent untold lucre defending the exact same reporting techniques that Biden’s prosecutors would have “disqualify” O’Keefe from First Amendment protection.

If the use of hidden cameras, undercover stings and “illegally obtained” information is now a judicial litmus test as to who is and isn’t deserving of First Amendment protections, then NBC better close up shop today. In Wilkins v. NBC, the network used hidden cameras to produce the “Hardcore Hustle” report, which exposed the then-growing practice of charging for so-called “toll-free” 800 lines which provided callers with access to 900-number type adult entertainment lines. (This was before the Internet, back when one had to put some effort into getting their smut). In that case, ultimately, the public interest in the story surmounted the private interests of the parties who were surreptitiously filmed.

Similarly, if the Biden Justice Department is able to re-define journalism as they wish here, ABC needs to sell their equipment and find new work for their investigative team. In Desnick v. ABC fake patients were sent into an ophthalmologist’s’ office to record evidence that Sam Donaldson breathlessly told viewers “[I]n our undercover investigation of the big cutter you’ll meet tonight, we turned up evidence that he may also be a big charger, doing unnecessary cataract surgery for the money.” It would be wise of the Justice Department to heed well Judge Posner’s stern holding in that case:

“Today’s “tabloid” style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market constitutes-although it is often shrill, one-sided, and offensive, and sometimes defamatory-an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation.”

The list of cases where major networks used hidden cameras or surreptitiously obtained material is lengthy, and often praised by those who traffic in that style of reporting. Who can forget the glee with which every media outlet rebroadcast the secretly made videotape of Mitt Romney telling donors “that 47% of Americans are dependent on the government” and “believe they are victims.” Of course, no context challenging the meaning of Romney’s words was provided, but no matter: The secretly taped video was posted online by Mother Jones magazine in the fall, several months after the fundraiser in May in Boca Raton where Romney spoke. The video created a national uproar as President Obama and his Democratic allies used Romney’s words to illustrate how the Republican was out of touch. But to the best of my knowledge, no FBI raids were conducted upon Mother Jones or any of the hundreds of outlets who republished the video. Nor should there have been.

There are a few signs that smarter and perhaps more honest journalists and their lawyers are, like Kirtley, seeing the dark clouds that the Justice Department’s actions portend. Asking if O’Keefe is a journalist in the eyes of the law, Politico’s Josh Gerstein also interviewed Kirtley and others, and noted that:

While many of O’Keefe’s tactics are unsavory, they are far from unknown in the mainstream press. Hidden-camera stings and undercover reporting have fallen out of fashion at most traditional news organizations, but they were once a staple of network television news magazines. In the 1970s, the Chicago Sun-Times bought a rundown bar and rigged it out with hidden cameras, successfully capturing city inspectors demanding bribes. NBC’s popular and controversial series, “To Catch a Predator,” revolves around hidden-camera stings.

If corporate media wants to survive into the next administration — and the ones after that — they will have to step up to the plate and pressure the Biden Administration to rethink this new effort at “disqualifying” outlets because of either their views, or their investigative techniques when properly executed. American government simply does not have the right to “license” or “define” journalism. In Turkey, CNN famously avoided broadcasting images of ongoing anti-Erdogan demonstrations and instead broadcast a documentary about penguins. Penguins.

Perhaps major media, who have already cut their investigative reporting to the bone, are planning as we speak on making exclusive deals with the San Diego Zoo. Because footage of penguins may be all that news outlets are allowed to publish.



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