The Story of Us
There's a subpoena on my desk.
I'm not named in it, but one of my colleagues, James Hibberd, is. He's the journalist who interviewed the Mountain Preserves arsonist, then wrote a story about it. [read the story]
Hibberd met the arsonist because he and his editors believed the guy might say something of value. His story would provide a glimpse inside the arsonist's psyche. It might even help authorities catch the people who are burning homes being built adjacent to the Mountain Preserves.
Lots of people were upset by Hibberd's January 25 story in New Times. Investigators were angry that we didn't deliver the arsonist to them in irons. Citizens who don't understand the difference between the media and the police were angry that we didn't turn the arsonist over to the authorities. Some purported journalists agreed with them.
Maricopa County Attorney Richard Romley was choleric, too. On January 26, he slapped Hibberd with a subpoena to appear before a grand jury. But Hibberd isn't to show up empty-handed.
Romley demanded that Hibberd bring with him "any and all notes, recordings, videos, caller ID, e-mail, letters, correspondence, web page records, web site records, telephone records, electronic data processing and storage devices, computers and computer systems including central processing units; internal and peripheral storage devices such as fixed disks, external hard disks, floppy disk drives and diskettes, tape drives and tapes, optical storage devices or other memory storage devices; peripheral input/output devices such as keyboards, printers, video display monitors, optical readers, and related communications devices such as modems; together with system documentation, operating logs and documentation, software and instruction manuals; all of the above records, whether stored on paper, on magnetic media, such as tape, cassette, disk, diskette or on memory storage devices such as optical disks, programmable instruments such as telephones, 'electronic address books,' calculators, or any other storage media, together with indicia of use, ownership, possession, or control of such records; and any other written documents pertaining to conversations with the alleged arsonist. This includes all requested documents and materials that may have been or have been deleted, shredded, erased or otherwise destroyed."
Apparently, the county attorney expects Hibberd to drive up in a Ryder truck.
Romley may contend that I am breaking the law by telling the populace of the prosecutor's plot to plunder the premises. But the subpoena sits here in front of me. There's no denying that. So I'll do my job, tell you about it and take my chances with the judge.
Of course, New Times will resist this wanton state intrusion.
The authors of the Constitution recognized that a free and independent press was essential to an open democratic society. They gave us the First Amendment. Lawmakers and courts have interpreted and defined applications of the First Amendment.
They have granted journalists special privileges. Perhaps the most important one is the right to protect our sources of information. The powers that be deemed that the advantage of knowing the truth about what's going on in our society is more important than knowing exactly who's got firsthand knowledge.
Romley has cast his broad net in the face of a sweeping statute that exempts journalists from disclosing their sources. The Arizona "Shield Law" states, "A person engaged in newspaper, radio, television or reportorial work . . . shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information obtained by him for publication . . ."
If they have any fondness for freedom, other journalists will join us in resisting Romley's fishing expedition.
Unfortunately, the behavior of much of Arizona's media has not served the cause of journalism. Many hastened to brand our arson story unethical and irresponsible.
Hell hath no fury like a reporter scooped.
I have nothing against cops, but I am not one of them.
Neither is James Hibberd. My fellow reporters, editors and photographers at New Times are not cops. Neither are the reporters at the city's daily newspapers or TV and radio stations, though some are confused on this point.
We're journalists, and our job is to gather information and disseminate facts. To do this well, we must be willing to talk to anyone about anything. To dismiss a segment of the population -- including criminal suspects -- is to disserve the citizens who rely on us to keep them informed. Often, the worst characters have the best information.
There has indeed been some irresponsible journalism practiced hereabouts -- by so-called journalists who embrace expedience over principle. These reactionaries bend to the prevailing breezes of popular sentiment, to the detriment of their profession.
The Arizona Republic, the largest newspaper in the state, responded to our arson story with a Page One hit piece that questioned New Times' journalistic ethics.
The Republic ignored the salient issue -- terrorists among us -- and focused instead on the messenger.
Three of the newspaper's news columnists -- E.J. Montini, David Leibowitz and Richard Ruelas -- denounced us for bringing you this news.
On his KTAR radio talk show, Leibowitz betrayed his longing to put down his pen and pin on a badge. He said he would have promised to protect the arsonist, then would have turned him in. Leibowitz added that he hoped that New Times was only pretending that it had not alerted authorities. He expected us to lie to our source, then lie to our readers.
A disturbing number of TV news people who called New Times seeking information about the story said they would have ratted the source out in a minute. KTAR news director Brian Barks told listeners he would have done just that.
People who hold these views have no business in journalism. This is the antithesis of journalistic ethics. How could these people report credibly on police matters after working in concert with them? How will they ever win the confidence of people who possess sensitive information? How can they ever ask a court to protect their privilege as journalists?
Such do-gooder logic would have required Dan Rather to assassinate Saddam Hussein in 1990 when he interviewed him in Baghdad. Such logic would have the Time magazine reporters who met with Osama bin Laden in 1998 shoot him with more than cameras. Such logic would have required Bob Woodward to reveal the identity of Deep Throat. I suppose these wanna-be cop-journalists would have turned in the plotters of the Boston Tea Party, whose acts were both destructive and illegal.
Montini postulated that our arrangement with the arsonist made us accessories to crimes, that conversing with such reprobates is beneath him. Such see-no-evil logic would have precluded the Washington Post and the New York Times from printing the Unabomber's manifesto, an act that led directly to his capture. Such sanitized logic would have precluded the Colorado TV reporter from interviewing the two Texas prison escapees last week -- an interview that facilitated their surrender.
And such logic foments dangerous excess on the part of the authorities, officials whom journalists are charged with watching. It fosters an atmosphere that degrades press independence, an environment in which prosecutors develop subpoena envy.
The Republic's front-page story last Thursday -- presented as objective reportage -- was a thinly veiled indictment of what New Times had wrought. Headlined "Fanning ethics flames," the story quoted a legal ethics professor from Arizona State University who deemed our story irresponsible. A city councilman seconded that notion.
The indignant professor, Marianne Moody Jennings, suggested that New Times should have betrayed our source. Jennings is not a professional journalist; she teaches in the school of business. (The Republic story did not quote any independent journalists or even journalistic ethicists, who are always eager to speak.) But Jennings was once a columnist for the Republic. At best, her screeds were defined by a palpable yearning for a theocracy. At worst, they pined for a police state.
If Jennings knew her law, she would know that the United States Supreme Court has ruled that a journalist who betrays a confidential source can be held liable for breach of contract. One such source won a $700,000 judgment from a Minnesota newspaper.
Dan Barr, a respected attorney for the Arizona First Amendment Coalition, is one of the few in local journalism circles who gets it. He's incredulous at the response to our story.
"For people to say you should do the interview and then you call the cops -- I just don't know what planet they're on," Barr says.
He notes that print articles, editorials and broadcasters who excoriated New Times for giving the arsonist a forum invariably included summaries of our story, "thereby further giving voice to the arsonist. You can't have it both ways."
"If you really think that way, why do any newspapers do news stories at all about this guy?" Barr asks. "Why do they publish editorials? You could make the same arguments that doing all that is irresponsible. Apparently, this person [arsonist] was set off by editorials and people saying things on the radio. Are we supposed to hold editorials and talk-show hosts responsible?"
Walter Lippman, in his social Darwinistic take on journalism, described the evolution of the press in four basic stages. Journalism in its lowest form served as an organ for the state, evolved into an organ of political parties, then advanced to an organ of the people and finally, hopefully, into an organ of wise objectivity, the uncorrupted, diligent and intelligent providers of balanced facts and analysis to the betterment of all of society.
What we witnessed last week was a knuckle-scraping de-evolution, to the primordial ooze of state-sanctioned reportage.
No wonder Arizona is a journalism wasteland. Arizonans have little comprehension of the proper role of journalists because so little competent journalism is practiced here.
Outside Arizona, serious journalists are astonished at the heresy of Arizona's press corps.
"I think it needs to be recognized that the journalist is not an arm of a law enforcement agency, nor is he a mouthpiece for the arsonist," says Aly Colón, a member of the ethics faculty at the Poynter Institute, a journalism think tank in St. Petersburg, Florida.
James W. Carey, who teaches ethics at the Columbia Graduate School of Journalism, says, "I certainly don't think you should have turned the person in. I'm just against cozy relationships between the press and police."
Serious journalists eschew such trysts. Americans know too well that government and law enforcement officials are not always the good guys. Furthermore, it's not inconceivable that today's criminal can be tomorrow's role model.
I abhor these acts of arson. But the unfortunate fact is that they are occurring. If our interview with the arsonist establishes no other point, it is that the perpetrators -- the Coalition to Save the Preserves -- believe they are engaging in acts of social protest. Their complaint is with unbridled development and the damage it does to the environment. Few of us embrace their extremist methods, but their concerns are undoubtedly shared by many Arizonans.
Carey believes the arsonist's posture as a social dissenter makes him a worthy subject. Journalists should grasp and communicate the underlying message, no matter how repugnant the methodology.
"The fact that it takes arson to get the attention of the elites of the community -- the city fathers and the developers -- so ideas can be expressed says something desperate about the state of local politics," Carey says. ". . . the channels of information and discussion and debate are so closed off now."
It's the press's job to keep those channels open -- by listening to all comers.
Colón says the arson story pits competing interests against one another -- the public's need to know who is lighting the fires versus law enforcement's need to stop the arsons.
"There's an interest in providing as much information and understanding as you possibly can about what's happening and why it's happening," Colón says. "So, in this instance, there is an obvious opportunity to possibly shed more light on who might be responsible for these arsons and why they're taking place. It is not uncommon or unusual for the news media to arrange to meet with people who are involved in activities that are not only frowned upon by society but are illegal as well -- if they feel that the information gathered could provide valuable insight into what is taking place. I think that this obviously presented itself as that kind of opportunity."
Colón would have preferred to see New Times present more evidence that the man claiming to be the arsonist was authentic. By sharing certain details with investigators before the story was published, Hibberd was able to determine that the source was genuine. These investigators are convinced that Hibberd's subject has intimate knowledge of the arsons.
In fact, sources close to the case told us that investigators were on the verge of releasing details they had been withholding because their investigation had stalled.
Barr believes that because of the New Times piece, "It's unquestionably true that the public and the authorities know more about this person now than they did before."
New Times did, in fact, provide valuable details about the arsonist to the authorities. But, like everybody else, the investigators got to read them in Hibberd's story.
For complete New Times coverage of the Preserves Arsonist, click over to the Arsonist Archives
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