Many Americans seem to have an image of reporters and editors running to the courthouse screaming "First Amendment!" at the slightest provocation. There may be some truth to that, but the provocation is usually not all that slight. Government officials tend to seek a legal solution when they discover a problem involving press behavior. The O.J. Simpson case provides a prime example.
Early in the proceedings, in a clear sign of how far some elements of the media would go for an exclusive, potential witnesses in the case were paid hefty sums to tell their stories (see "Interviews for Sale," September 1994). Checkbook journalism was rearing its unpretty head again.
That, of course, is a serious ethical issue for journalists and news organizations. Some would never do such a thing; others would, and do, without apology. The California legislature, unwilling to leave the matter to the consciences of journalists, decided to regulate the practice. Predictably, the matter wound up in the courts.
Two new California measures, which were signed into law last September and went into effect January 1, make it a crime for anyone to receive money or a "benefit" from a reporter in exchange for information they obtained by witnessing a crime. They also make it illegal to take money for information if that leads prosecutors to call the person providing the information as a witness in a criminal case.
Media lawyers complain that some terms used in the laws are vague, so it is difficult to know with precision what is illegal. What, for example, qualifies as a "benefit?"
The laws do not target the media directly. They do not make it a crime for the press to pay for interviews – and they do not make it a crime for reporters to be paid their salaries for reporting what they find "in the ordinary course of business." But like other measures aimed at controlling the conduct of potential news sources, the laws almost certainly would discourage taking pay for information about crime by making it too risky for witnesses.
The laws appear likely to cover more than outright payments for information from a witness. According to the California First Amendment Coalition, an advocacy group based in Sacramento, the laws apply to "any payment, no matter how small or incidental, including: a source's lunch tab picked up by a reporter or editor; travel expenses paid to bring a distant guest to a broadcast studio for a talk show apearance; honoraria paid to guest columnists by newspapers or magazines."
The coalition concedes that more potential sources are asking for money in exchange for telling what they know. But as coalition president Bruce B. Brugmann put it, "There's plenty for everyone to dissect and debate how the press gets its information, how it reports it and what it considers newsworthy... But if the First Amendment stands for anything, it means that politicians can't just decide on their own what they find inconvenient or obnoxious about journalism and adjust the penal code accordingly."
The press, Brugmann says, ought to be "disciplined" by "critical protest" against the way it operates, not by criminal prosecution.
But because the legislature has preempted ethical debate and critical protest by opting for criminal prosecution, checkbook journalism is now an issue solely for the courts. In February the coalition filed a First Amendment lawsuit in federal court in San Francisco, asking that the new statutes be struck down.
The laws, the lawsuit contends, "punish the expression and reporting of a vast array of otherwise lawfully obtained, truthful information on matters of public concern because of the content" of that information. The lawsuit argues that such laws would have criminalized former Nixon White House aide H.R. Haldeman's receipt of $25,000 for a television interview and may outlaw royalties to O.J. Simpson's defense fund for his new book, "I Want to Tell You."
The coalition's executive director, Terry Francke, argues that the new laws are based on "the assumption that information that's paid for is false, or at least suspect – that if you ask for money to tell what you know, you'll be inclined to lie. This suspicion confuses opportunism with dishonesty."
The coalition lawsuit will be decided not on the basis of what is proper or improper journalistic practice, but on whether the state government has a legitimate worry over checkbook journalism and whether making it a crime is necessary. One significant problem for the First Amendment challenge is that the laws cleverly are aimed at participants in criminal trials – actual or potential witnesses. The courts tend to think that dealing with witnesses is very much the business of the law.
The impact on the press may be very real indeed. But that might not be what makes the difference in court. l