As a First Amendment extremist, I bristle at any legal threat—civil or criminal—made against a news organization. But please excuse me for not rushing to the defense of the newsies at ABC News, who could face federal charges for staging a TV stunt in which they smuggled 15 pounds of depleted uranium into the United States.
According to a report in today’s Washington Post by Howard Kurtz, the network’s PrimeTime Thursday program shipped the stuff from Jakarta to Los Angeles aboard the Charlotte Maersk to prove the inadequacies of U.S. security, suppressing the material’s radioactive signature by encasing it inside a lead and steel jacket. The purpose of the stunt was to prove that the undetected package could have just as easily contained a nuclear bomb and that homeland security is a joke.
Shipping depleted uranium breaks no law, but failing to accurately declare the contents of a shipment into the United States does, and a Homeland Security Department spokesman tells the Post the Justice Department is looking into the matter. PrimeTime Thursday will air its report tonight on ABC. (ABC gives its side of the story here.)
Sen. Charles E. Grassley, R.-Iowa, supported ABC News in a letter he sent to both Attorney General John D. Ashcroft and Homeland Security Secretary Tom Ridge, urging that whatever they might do, they make certain “that legitimate reporting is not chilled.” This poses at least two questions: 1) Can reporters break the law in pursuit of a big story, as ABC News confesses it did, and 2) how legitimate was ABC’s reporting?
Although the journalistic tradition of bending the rules to get at the truth dates back to at least the 19th-century antics of Nellie Bly, reporters have no more right to violate the standard laws against fraud, theft, trespass, and assault than other folks just because they’re chasing a big story. It took the very same ABC News eight years to beat back trespassing, fraud, and breach of loyalty charges filed against it by the Food Lion supermarket chain in the early ‘90s, when the network lied and connived in going undercover to report on the company’s food-handling practices. In the end, ABC paid just $2 in damages, but only after the lower courts’ verdicts of millions were reversed. Given that history, one can’t imagine that ABC’s attorneys signed off on PrimeTime Thursday’s methodology. I can just hear the ABC producers’ pitch to their attorneys: “We’ve got a great idea for a story! ABC breaks the law and then reports on it! We’ll have the exclusive!”
I could be persuaded to sign an amicus curiae in support of ABC’s Bly-esque news-gathering practices—or at least visit ABC’s convicted reporters in jail—if the network’s stunt had uncovered something startlingly unknown about port security. But nobody has ever asserted that U.S. Customs inspects all 50,000 cargo containers arriving in U.S. ports each day for radioactive material. Yes, Customs has invested heavily in pocket-size detectors for every Customs agent and is developing new technology to screen containers, but sheer numbers require Customs to rely largely on the art of profiling to ferret out radioactive cargo. U.S. shores won’t be 100 percent safe from radioactive cargo for many years. ABC’s uranium caper may sound spectacular to the average TV viewer, but it contains nothing a Nexis and Web search couldn’t have uncovered in a few minutes—without breaking the law. In fact, Michael Crowley violated no statute in reporting his delectably detailed feature about the cargo-bomb threat that the New Republic published one year ago. How “legitimate” can ABC’s stunt be when what it’s uncovered is already widely known?
The First Amendment doesn’t convey diplomatic immunity to reporters, nor should it. It provides enormous leeway for reporters to gather and publish information that may inconvenience, embarrass, expose, or ruin individuals, corporations, or governments. And as a legal rule of thumb, as long as reporters traffic in information (documents, interviews, pictures, recordings) in the pursuit of an important public matter, the courts almost always give their blessing—even if a reporter obtained the information from somebody who (gulp!) stole it.
Press Box hereby sentences the PrimeTime Thursday team to a refresher course in media law and an afternoon tutorial in Nexis and Web surfing.
Ship only law-abiding comments to firstname.lastname@example.org. (E-mails to Press Box may be published unless stipulated otherwise by the writer.)