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Op-Ed

Tabloids don't deserve the 1st Amendment

Our respect for freedom of the press shelters their illegal conduct.

July 19, 2011|By Jeffrey Scott Shapiro

The FBI opened an inquiry late last week into Rupert Murdoch's media empire amid allegations that British reporters tried to access cellphone messages and records of Sept. 11 victims. Rep. Peter T. King (R-N.Y.), among the members of Congress who sought the investigation, wrote to FBI Director Robert Mueller, citing news reports that reporters attempted to obtain phone records of victims through bribery and unauthorized wiretapping.

Although these kinds of tactics may come as a shock to the public, I witnessed many of the same tactics while working as a cub reporter for the Globe tabloid in the late 1990s.

Some American tabloids do not operate much differently from British ones. Many of the editors who reign over American tabloid newsrooms hail from Britain, where tabloid "journalists" have justified their tactics by deluding themselves that they are avengers for the working class, exposing the decadence of the rich and famous as well as the royal family.

Photos: British phone hacking scandal

As tabloids on both sides of the Atlantic have started covering more serious stories involving crime and politics, however, innocent, ordinary people have joined the ranks of their victims.

I observed tabloid reporters and editors prey on the families of murder victims and witnesses by hiring investigators to access their credit card and phone records. My editors sometimes tried to bribe or blackmail government officials for information.

The problem isn't Rupert Murdoch. The problem is that the culture of tabloid journalism in both Britain and the United States is deeply tied to criminal acts. Without illegal conduct, tabloids could not preempt the mainstream press, and they would not survive.

In 1999, while covering the JonBenet Ramsey murder case in Boulder, Colo., I reported my tabloid editors to the FBI for the attempted extortion of a police detective. My editors had threatened to publish a negative story about his family if he did not illegally leak sealed grand jury evidence. One of my editors also offered tens of thousands of dollars to an expert hired by defense lawyers for a copy of the coveted ransom note.

After I testified before a Colorado grand jury, and felony indictments were handed down to a Globe editor and a consultant, the tabloid challenged the case on 1st Amendment grounds before the Colorado Supreme Court and lost. Despite the fact that the ruling gave prosecutors the green light to proceed, agents for the Colorado Bureau of Investigation told me that the local district attorney was concerned about being criticized for prosecuting a media organization. The charges were dropped for a mere $100,000 contribution to a journalism program and an admission from the tabloid that it had acted unethically. Confidentially, the FBI told me, "Every time we get reports of misconduct by the press, we try to do something, but the U.S. attorney's office shuts us down because of the 1st Amendment."

A few years later, I decided to go to law school and became a prosecutor in Washington, where I had the job of handling 1st Amendment-related cases against protesters who had been charged with disrupting events at the U.S. Capitol, the White House and national monuments.

Although I secured a conviction almost every time, not one protester who asserted a 1st Amendment defense ever served a day in jail, including a demonstrator I convicted who had tried to attack Secretary of State Condoleezza Rice in the House of Representatives. "There may be other judges that will send you to jail for this, but not this judge," the jurist told her. The reality, however, was that no other judge would have sent her to jail either. A few months later she was tackled by the U.S. Secret Service after she tried to attack President George W. Bush.

Although the law provides us with the tools we need to punish crimes related to free speech, the judicial system is too quick to bow before the 1st Amendment, and as a result we end up shielding criminals who misrepresent themselves as journalists and activists.

If Congress truly wants to resolve this issue, it should take a cue from the British Parliament and hold hearings to investigate this systemic problem. This is not just a matter of ineffective prosecution and judicial weakness. The root of the problem is our reluctance as a nation to accept that something can be criminal when it involves expression.

Crime is crime. Tabloid journalism uses illegal tactics, and it does not deserve absolute protection from the 1st Amendment.

Photos: British phone hacking scandal

Jeffrey Scott Shapiro is a former tabloid reporter who now practices criminal and media law.

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