Were the Media Negligent in Waco?   

As the Unabomber case shows, tensions between the press and law enforcement are constant.

We hear a lot these days about news media "responsibility." The Washington Post and the New York Times thought they were being responsible last September when they
decided to accede to the demands of an elusive terrorist and the recommendations of the Justice Department and publish the 35,000-word Unabomber manifesto – not for "journalistic reasons," but in the interest of "public safety."

Some people agreed with them. President Clinton told a Pittsburgh television station that both newspapers acted in a "good and brave way." But some in the industry criticized the newspapers for "caving in to terrorism," "letting the government dictate" what they published and "getting involved in the law enforcement business." One commentator described the action as "civic journalism gone amok."

Seven months later, after the arrest of suspect Theodore Kaczynski, the New York Times claimed vindication, reporting that "the publication of the manifesto was apparently a crucial part of [the] breakthrough."

But no sooner had the arrest been made than another news outlet, CBS, was accused by unnamed FBI agents of acting "irresponsibly" when it interrupted its regular programming to report that the FBI was about to execute its search warrant at the suspected Unabomber cabin. The anonymous sources said CBS' decision to air the story after holding it for several days compelled the bureau to curtail its surveillance earlier than it would have liked. A subsequent official FBI statement, however, praised the network for acting "in a memorably responsible manner."

But while these outlets were basking in official approval of their "responsible" conduct, two other news organizations were reeling from a very different assessment by a federal judge in Waco, Texas.

Following the government's raid on the Branch Davidian compound in 1993, several ATF agents filed a civil suit against Cox Enterprises, owner of the Waco Tribune-Herald, and KWTX, a local television station, claiming that the news organizations' conduct prior to the raid led to the injury or death of several agents during the initial assault.

The agents contend that a KWTX cameraman en route to the scene inadvertently tipped off the Davidians when he asked a passerby for directions, and that the presence of media vehicles outside the compound alerted the cult that something was up.

The news organizations replied that they could not be responsible for what occurred because the First Amendment guarantees their right to engage in ordinary newsgathering practices. As independent journalists, they had no special duty to preserve the secrecy of the operation.

Judge Walter S. Smith Jr. disagreed. He said there was nothing "routine" about the events in Waco, and that the media owed a duty to the agents not to warn the Davidians, either intentionally or negligently. Smith found more than enough evidence of media "irresponsibility" to justify ordering the case to trial.

The judge wrote that the news organizations may have been negligent under the law when they failed to provide any guidelines or instructions to the reporters sent to the scene. "Common sense would dictate that a reporter..would do everything possible to avoid detection when covering..a secret law enforcement operation," he wrote. "Instead, the media arrogantly descended on the compound as if the First Amendment cloaked them with immunity from acting as reasonable individuals under the circumstances."

Journalists are "no more free to cause harm to others while gathering news than any other individual," Smith wrote. He said the media should have anticipated that ATF would proceed with the raid even though the bureau knew that David Koresh had been warned that action was imminent. A jury will have to decide whether the reporters' failure to exercise "some degree of caution" to avoid warning the Davidians did more to cause the tragic result than the bureau's decision to conduct the raid, knowing that the element of surprise was lost. If so, they could be held liable for the agents' injuries.

The judge conceded that no prior case from any jurisdiction has ever held a journalist liable for negligence while reporting on law enforcement operations. But he sees no problem with creating new law in this case. "Demanding that the press act responsibly in such a unique situation," he contends, "will not 'chill' First Amendment rights."

Ömith is wrong. Waco is not unique. As the Unabomber incident shows, tension will always exist between law enforcement's desire to shield its activities from scrutiny and the media's determination to uncover them.

Journalists' sole "responsibility" should be to report the news to their readers and viewers. Trying to conform to the government's definition of "responsible journalism" is a recipe for disaster. l