I’ve been writing day after day after day at Independent Journal Review which leaves less time for my own site, but I’ll cross post with IJR and continue to write longer length pieces and continue to include posts by Bruce McCain, Rees Lloyd, Bernie Giusto, Scott St. Clair and Pete the Banker over here and continue my site specific items.
The San Diego Police Department has been riven with scandal. Cops trading tickets for sex, an on-duty rape of a prostitute, groping ‘pat downs’ of suspects, soft-core porn sex posters at the desk of a sex crimes unit investigator and apparent nepotism have corroded the morale and morality of America’s Finest City’s cop shop.
And then there are the lawsuits. Plenty of lawsuits. Lawsuits from female victims of the cops. Lawsuits from fellow female detectives. Millions of dollars in lawsuits.
But San Diego’s Police Department is apparently losing something even more valuable: Public trust. One female activist told the Union Tribune, “Who is going to stop for a police officer?” asked Lei-Chala Wilson, a retired deputy public defender and president of the local National Association for the Advancement of Colored People. “I’m not stopping.”
San Diegans have shown they have no appetite for this kind of behavior. They just booted the city’s top groper, erstwhile Mayor Bob Filner. They threw Filner out and hired a squeaky clean new mayor. Now Kevin Faulconer needs to clean house.
Chief Bill Lansdowne has called for an “audit” of his department. When under fire, take cover. That’s what this is. Before the city spends one penny on that audit, however, these things should happen right now:
1) An immediate stop placed on all hiring of police officers pending an expedited review of the Police Officer Hiring process;
2) There needs to be a targeted and unbending review of the Psychological profile which has been developed for the hiring of police officers. There is something wrong with that profile. It is likely incomplete or inaccurately focused;
3) There must be a special emphasis placed on developing a hiring profile that dramatically tightens the screen on sorting out individuals who are identified as have notable potential for acting outside of socio-acceptable norms and especially for acting those out in positions of authority or otherwise. In my last years at Gresham and the Sheriff’s Office, Dr David Corey and I talked about such a screen and at the time he was working that issue through. He believed it was the next great public confidence cesspool for law enforcement;
4) He needs a similar profile developed for the supervisory promotion process with a slightly different emphasis. This is critical at the first line supervisor levels ( promotion to Corporal Rank if any and at the rank of Sergeant). The emphasis here should be about assessing the sensitivity;
5) The probation evaluation process apparently need a total do-over. When the rank and file tell you there is a problem with who gets passed into the regular cop club at the end of probation be assured there is a problem. It needs a do-over.
6) If the hiring process is not operated by the police department but is primarily in the hands of a city civil service process it must be returned singularly to SDPD with special oversight by the Mayor’s Office and the City Council.
7) The Chief needs to seek union support for a strong “Fitness For Duty” management right. This is important in creating a “reasonable suspicion” standard that allows deviant or unreasonable behavior outside of police norms will subject individual veteran police officers to a Fitness for Duty examination with a strong emphasis on confidentiality regardless of the eventual outcome and of course subject to California’s Public Records law and finally;
8) All of those need to be conducted outside the Chief’ Office direct or indirect control. The Chief should immediately enlist a panel of three active Police Chiefs and or Sheriffs with stellar personnel background experience and results to guide the above processes. It is fine to have the two other organizations do a longer term look at the department/community relations overall but there is an urgency that frantically needs an “outside real cop” expertise.
If the city goes forward with the audit–an underwhelming approach–it should be run out of the Mayor’s Office and/or by an independent Chief of police. The command structure of SDPD should remain totally on the sidelines and not inform the investigation at all except as they are interviewed. The auditing organization would report only to that specially administrative oversight and the final report would be released by the Mayor and without any hands editing on by SDPD Chief’s administrative structure. Having said all that…FAT CHANCE best describes even the remotest possibility that will happen.
As for the Chief himself, he owes the public a careful look to see if he is actually capable of stopping this very serious problem. Or is it just another academic exercise that will feel to the public like another good old fashion public policy rope-a-dope?
Bernie Giusto is the retired Multnomah County Sheriff, former Gresham Police Chief, former Gresham City Council Member and is a member of the www.VictoriaTaft.com Blogforce.
The never ending gunfire that may not warm the heart
For those who were at Clackamas Town Center on the afternoon of December 11, 2012, the sounds of gunfire still rings clearly this holiday. They will tell you that on that day each shot fired by 19 year old Jacob Roberts had a meaning all of its own. They wondered, not in awe but in fear, that each round of ammunition carried name of a potential victim ,theirs, at the end of its travel. They know exactly where they were when the shooting started, but will be hard pressed to tell you when it stopped. Because it never seemed to stop that afternoon. For some it still has not stopped. For others and their families it will never stop.
Lost in the gunfire that day was one simple fact: The cops were on the way with an energy and commitment to duty you can only understand if you have been there. There was no illusion for those deputies and police officers that they were riding to the rescue of those in trouble. They knew that the report of gunfire meant that they were on the way not to save every life but, if they were lucky and skilled, the next one. That the gunfire was happening in a place where violence can multiply its affect quickly only meant that once on scene they would not have time try to find “a safe way” to stop the shooting. It didn’t matter who or what awaited them either outside or inside. The only mission regardless of the danger of the unknown was to stop the shooting and stop it in the soonest moment possible.
In the background, invisible to all except Operations, was the command brain center that guided the operations through the eyes and ears of cops about to be deployed around and then into Clackamas Town Center. Tactical Command is the place where the command to act is guided through the careful assessment of the situation as relayed by the sights and sounds being soaked in by the cops on scene. Tactical command is the place where fear and the strong sense of duty takes a deep breath, and, in this case, where rational and unemotional decisions were made and then implemented.
It is the place where a commander’s career experience brings life to a life and death plan where there are significantly more unknowns than certainties. The clear separation of Tactical Command and Operational Command both in location and mind set was beyond essential, it is in fact critical to the life and death decisions and action that followed. The separation of Tactical and Operational Command signaled a well trained and disciplined police response. Clearly the decisions made were based on well tested police policy and implemented by a calm deployment of operations resources.
When Operations Command and Tactical Command were joined in purpose at Town Center, tactical Command asking the right question in the right order was more important than any singular answer to follow by Operational Command. Soon that would flip over and the observations of Operational Command would be driving the plan now being formulated, deployed and revised in the minds of the Tactical Commander. That is correct commander singular. A heavy burden to shoulder. Orders given from Tactical Command will be responsible for the lives yet to enter the mall and those waiting to be rescued. Calculating a tactical plan does not mean delaying operational action. It only means that tactical guidance must be an unemotional decision making process and the resulting guidance implemented rationally by operations command.
So as the cops began to arrive they prepared a mental checklist of what they would be facing. When two, three, four uniforms arrived from whatever agency, they knew that waiting for a Special Weapons Team was not an option. They gathered and deployed into the mall with the unknowns far out weighing any certainties. They may or may not have comparable firepower as a group or as individuals. They used their “Active Shooter” training which sent them in to hunt down the bad guys and neutralizing them. They knew there was much more danger to those waiting for their help. The safety of the Active Shooter team they knew would have to wait. But they did not engage this shooter. Roberts shot himself when his delusion meets reality.
For Cindy Yuille and Steven Forsythe the best tactical plan backed up by the courage to actively hunting the shooter would come too late. For Kristina Shevechenko the presence of well trained operational deputies and police officers could no doubt only provide emergency attention to her critical wounds and does very little to give her emotional comfort going forward. For their families all that tactical and operational mumbo jumbo matter little. They will find whatever peace comes to them in the memory of Cindy and Steven and grateful for the recovery of Kristina.
A year later we are still arguing over whether the actions of an armed, licensed security guard, Nick Meli, who said he drew his weapon to engage Roberts himself really made any difference. We are still trying to assess the possibility that Roberts seeing Meli’s gun caused him to end the shooting. In the moment it may have, we will never know, but in the longer threat assessment to our community, I’m not sure it does.
In all the recounting of the tragedy at Town Center, the evil of guns in the wrong hands remains front and center. The problem is we can’t define the “wrong hands” let alone the wrong gun. If it is not all guns that are evil then certainly we are still in a free fire zone conversation regarding the killing power of high capacity weapons and ammunition magazines. But we are still no closer to placing responsibility with those who harbor guns legally but carelessly.
In all the review of the Clackamas Town Center shootings this month you will find no mention of how the AR-15 used in the shooting got into the hands of this violence prone individual. To refresh memory, Roberts took the weapon from a friend’s house in the hours prior to his delusional rampage. I use the word “took” because it must not have been stolen. He must have allowed Roberts to possess the gun otherwise a responsible gun owner would have reported the weapon stolen maybe even naming Roberts as a suspect. The only other possibility is that he had no idea the AR-15 was missing and even where it might have been at any one moment, even that moment when it was blazing terror into Clackamas Town Center. We can be absolutely sure that it was not locked away in a place not available to any other person including Jacob Roberts.
Our law makers must place the responsibility squarely on the owner to secure this gun. There is a legitimate state interest of the state to control firearms through forcing individual responsibility of ownership even of just high capacity firearms and magazines with appropriate penalty assigned when the statutory test is failed to be met. if they need further proof just ask the parents and families of 20 children and 6 teachers and staff of Newtown Connecticut who were shot to death by Adam Lanza who was armed firearms legally purchased by his mother and left available to him even with known mental health issues. Again: no unsecured guns, very likely no shooter.
If we quit quibbling over tired gun purchase issues and– just for this holiday season– remember the shots fired at Clackamas Town Center and that preventing this shooting before it happened may have been within control of our well intended political leaders. Certainly the next time they can’t say they didn’t know.
And the best news is that it will take very little political courage.
Now there is a heartwarming thought
Bernie Giusto is the retired Multnomah County Sheriff, former Gresham Police Chief, former Gresham city council member, and member of the Multnomah County ESD. He’s also a member of the Victoria Taft Blogforce.
Wouldn’t it be great if you could pick and choose your opponents? Like boxing managers in some smoky room in Vegas deciding who would get the next shot at the heavyweight title, your opponent would be hand selected based on what you, the champ, believed would best serve your needs.
In a sense, the Obama Administration proposes much the same arrangement with news coverage.President Obama has asked Senator Chuck Schumer to reintroduce federal Journalist Shield Law legislation.
The shield law would allow a journalist a get-out-of-jail free card if they refuse to reveal a source of a story. But there’s a catch. Government would decide who qualifies as a “journalist” and leave the seriousness of a journalistic transgression up to a judge to decide. The government would presume to separate the legit journalists from the non journalists.
And that puts Barack Obama in the role of Don King.
As conservative columnist Jonah Goldberg puts it,
Journalism isn’t a priestly caste or professional guild with special rights. It is an activity we all have a right to partake in. Whether it’s a blogger with a virtual tip jar exposing malfeasance or 60 Minutes making fraudulent charges about George W. Bush, there will always be good journalism and bad journalism.
I was a working journalist for years and now I am a blogger. What changed? The person who paid me. The last time this law was considered, bloggers were left off the list of government-approved journalists and it looks like Senator Diane Feinstein wants to keep it that way in the bill’s latest iteration,
“I can’t support it if everyone who has a blog has a special privilege … or if Edward Snowden were to sit down and write this stuff, he would have a privilege. I’m not going to go there,” she said.
Thomas Paine was a blogger of his day. Would the pamphleteer who wrote Common Sense make the cut in DiFi’s world?
Journalism is done for the public good, but it is a private activity. What role does the government have at all in this private activity?
Goldberg lasers in on a fundamental flaw in the logic behind this shield law. Lawmakers have forgotten that the First Amendment covers other things besides a ‘free press,’
It also protects free speech, free assembly, freedom of worship and the right to petition the government for the redress of grievances. We all have these rights. The Washington Post’s Bob Woodward has no more rights than my dentist.
The Washington Post’s Bob Woodward has no more rights than my dentist.
It’s possible lawmakers have the same deliberate misunderstanding of the First Amendment as they do of the Second. Rights are accorded every individual citizen, not just government approved subsets of people they call ‘journalists’ or ‘militias.’ With that in mind, I’ve asked the VictoriaTaft.com Blogforce and others to weigh in on this issue. The following are their essays from their own perspectives.
Journalist Shield Laws–A VERY BAD IDEA
Novelist John D. Trudel
What our President and some Republican cronies are attempting to do with this legislation is evil. They seek to exploit public outrage and endless rolling crisis (Obama’s “phony scandals”) to attack and erase our basic Unalienable, God-Given Constitutional rights. “We all have these rights. The Washington Post’s Bob Woodward has no more rights than my dentist,” says blogger Jonah Goldberg.
NSA is turning America into a “Total Surveillance State,” a “Prison without walls.” DOJ is lying to judges and committees while bugging reporters and Congress. IRS and many other Federal agencies are being used as political attack dogs, and NOT just against the TEA Parties, against companies like Gibson Guitar, non-profits like True the Vote, and, yes, against journalists and writers. We also have the Benghazi, Extortion 17, and Syria cover-ups. Who dares speak against this? Where is Paul Revere?
The media has totally failed in its traditional 4th Estate role. It has moved beyond bias to being an integral part of Team Obama, a propaganda arm with financial and family connections. The old media is no longer trusted, declining, and becoming irrelevant.
New networks are emerging, from Fox to The Blaze, part of a return to grass roots journalism with powerful new technology. Instead of Thomas Paine and his pamphlets, we now have legions of bloggers, writers, PACs, and informal networks, most of us seeking to spread truth, each in our own way. America is seeing a new awakening. The embers of freedom still burn.
This threatens Washington insiders, the power elites in both parties. They don’t want to face investigations, arrests, and impeachments. Instead of enforcing existing laws, they seek to pass new laws and empower bureaucracies to ration freedom and circumvent the Constitution.
The proposed “Shield Laws” are just one more attempt to create classes of Government Given Rights to favor insiders and to replace the God Given Rights endowed to ALL Americans by our Creator.
The proposed “Shield Laws” are just one more attempt to create classes of Government Given Rights to favor insiders and to replace the God Given Rights endowed to ALL Americans by our Creator. Obama’s “Soft Tyranny” is growing fangs and claws. Our rights come from God, not from any government, and we cede these at our peril. “Those who seek safety by giving up Liberty will wind up with neither.”
It is an interesting time to be a Thriller novelist. My last novel, Privacy Wars, won three national awards, predicted the NSA and IRS scandals, and is getting more discussion in political groups than in bookstores. My next book, Soft Target, has a SPEC OPS storyline. I don’t even HAVE a blog yet. I’ve planned to start one as my Email lists are badly overloaded, but if we have government control of public speech, it is game over. Not just for bloggers, for all of us, and for the America we love.
[I]f we have government control of public speech, it is game over. Not just for bloggers, for all of us, and for the America we love.
“Share” if you want our politicians to start respecting the Constitution! Send them a message here: http://bit.ly/1doWd52. John Trudel is a novelist and thinker. Find his work here: www.johntrudel.com
We’re All Journalists
Citizen Journalist, Dan Sandini:So by way of introduction I’m Dan Sandini, a double Masters with top grades and 20 years in tech and finance. Came from nothing except three squares, a roof, and parents who loved and cared about about me. After retiring self-made at 42, I saw Breitbart give a speech on YouTube and became a Citizen Journalist. I’m lousy at all aspects of it, but was good and persistent enough to help expose the reality of Occupy, meet Breitbart and contribute to his movie Occupy Unmasked.
I want to say that it is my belief that all Citizens of the United States of America are, and should be considered Journalists. I’ve learned that the truth is no one story. That each of us as Americans, even when seeking to to offer “just the facts,” offer unique perspectives. Only with a collective perspective, available to all other Citizens, can we as a society form a consensus of what reality is, and thereby make the right decisions forward as a nation. I have seen Blacks the target of racism, and have the act ignored by the reporters of every mainstream media outlet in the city in the interest of political expediency. Without one brave TEA Party Mom with a cell phone camera, the truth would still be unknown. But thanks to her: the truth is undeniable.
Thomas Paine said: “When men yield up the privilege of thinking, the last shadow of liberty quits the horizon.”
Further, without having any formal education in philosophy or history, I have an innate sense that we humans are extremely special beings, all created equal, endowed by our creator with certain unalienable Rights, including our freedom to report the news as we see it. This Right has been protected from legislators such as yourselves under the First Amendment of the United States Constitution. Thomas Paine said: “When men yield up the privilege of thinking, the last shadow of liberty quits the horizon.” Please do not let history record that it happened under your watch.
Nothing is more threatening to United States law enforcement’s ability to protect our free society than artificially limiting freedom of speech.
Nothing is more threatening to United States law enforcement’s ability to protect our free society than artificially limiting freedom of speech.
Agents of the FBI, Sheriffs, Chiefs of Police, State Troopers, Deputies and police officers in general have long relied on the right to engage anyone, in the court protected Fourth Amendment use of the force principle known ,”Mere Conversation.” Courts have long protected that principle with or without a specific purpose for the conversation. The freedom to ask questions, interpret the answer, and publish those exchanges in police documents as a part of the public record (available to a free press) is the check and balance courts have set out as the most fail-safe method limiting the abuse of the freedom of expression of an over ambitious law enforcement agenda. First and foremost, the courts have protected the right of law enforcement to be journalists undefined by law, with the right to ask and the purpose to inform of a crime past or a clear and present danger that may await.
First and foremost, the courts have protected the right of law enforcement to be journalists undefined by law, with the right to ask and the purpose to inform of a crime past or a clear and present danger that may await.
When Congress redefines Free Speech by defining a “journalist” with the purpose of limiting who is protected for sharing views, the real danger is not who is included in this newly created clique but who is left. The basis of police writings are nothing more than written observations informed by events which are often subject to the individual interpretation by individual “police” journalists. We not only allow, but courts have extolled the social virtues of, allowing police officers to lie to bad guys in order to get to the truth of a potential or actual criminal act to protect (the predefined) good guys. Eventually, both the lie and truth it may or may not extract become part of these journalistic observations. We trust that this creative fiction serves a greater interest, but even more, we trust that protecting the right of these “sworn citizen journalists” is a social necessity. The observations that lead to those lies to get to the truth are necessities worth protecting.These journalists may be summoned to court to validate the fiction, but most often they are not. These cop journalists are given the benefit of the doubt. In fact, we praise their results even if the cop had to lie to get to the truth.
So it would lead this long-time “police” journalist to conclude that when Congress sets about redefining who gets protection for their journalistic creativity and who does not, it is defining what has social value and what does not. Congress could keep redefining what ‘value’ is and the rationale to decide. Congress could someday decide to end protection police journalists have for what they observe and record. Congress could decide to end the practice of allowing a cop to lie to get to the truth, saying that we are no longer allowed to judge the value of the lie but only experience the result of the lie on the public record and in the public consciousness. If that happens, we have gone way past “In God We Trust.” Instead, we will have completely forsaken one of our founding principles on which free speech was born, “…[T]hat these truths are held to be self evident.” I wonder if they meant “…but only as viewed by Congress.
Bernie Giusto, Multnomah County Sheriff (Retired), Chief of Police, City of Gresham,Oregon State Police, member Victoria Taft Blogforce.
Anyone can report the news and should
by Victor Sharpe
The Constitution we appreciate and embrace so deeply is threatened by Democrat politicians, from the present incumbent in the White House, Barack Hussein Obama, down through the Democrat Senatorial and House ranks. Now we have Senators Durbin, Schumer, Feinstein, et al, threatening our First Amendment rights, namely by defining who is a “real” journalist.
The Shield Law attempts to place some limitations on courts and police from compelling journalists to divulge anonymous sources. But Senator Durbin wants to penalize those whom he disapproves of, especially those who write words he finds objectionable and not supportive of his leftist views. In a recent opinion essay published in the Chicago Sun Times, Senator Durbin argued it was “time to say who’s a real reporter.” In other words, he wants many of those on the right to be stripped of their First Amendment protections.
The Democrat supporters now want the Obama Administration to be the arbiter of who the First Amendment can apply to. In other words, the old Marxist aphorism that, “all people are equal, but some are more equal than others,” will apply and severely affect everyone’s rights – but primarily conservative bloggers and writers who oppose the soft tyranny that is the Obama regime.
Anyone can report the news and so they should. Just because amateur reporters or freelance journalists are mostly unpaid and work independently should not preclude them from enjoying the same First Amendment privileges, which the so often biased leftwing political hacks who infest the mainstream media receive.
Victor Sharpe is a writer for many national blogs, including American Thinker, is a musician and a middle east expert.
Free Speech is Free Speech; without compromise.
by Dr. Tim Ball
“The natural progress of things is for liberty to yield and government to gain ground.” –Thomas Jefferson
The US Founding Fathers produced a masterpiece. It works because it has no illusions about the nature of people. As George Washington said, “We must take human nature as we find it, perfection falls not to the share of mortals.” They knew some people would attempt to ignore, bypass, or even corrupt a free society. They understood the power of power; the corruption of power; and the power of corruption. They anticipated Lord Acton’s comment that power corrupts and absolute power corrupts absolutely. Alexander Hamilton said, “A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.” James Madison expressed it this way. “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.” They designed a system that anticipated and precluded demagoguery. They knew the key was free speech and so made its protection the top objective. They knew governments were the most likely to abridge or control free speech and so made the second amendment the ability to defend it.
As George Washington said, “We must take human nature as we find it, perfection falls not to the share of mortals.”
The Fathers also understood that information and its dissemination is power and recognized the role of the media as the Fifth Estate. The US people and their constitution is being challenged as never before partly because the media failed. It is the pattern of previous civilizations that they begin to fail in the second century of their existence as demagogues and power elites undermine the values, institutions and thereby the belief of the people.
Marshall McLuhan coined the phrase, “global village”. It was the first part of information democracy. The second part was the creation of the Internet. For the first time in history a majority of people had access to information but could contribute their ideas and participate in discussions among large numbers of people. People realized the value, openness and diversity of the internet so it quickly became the source of information for more and more people. This accelerated the demise of the media already in progress because of their failure to act as the Founding Fathers had envisioned.
In an ironic twist the success of the internet and bloggers has triggered attempts to limit their role. The media want the politicians, who they are supposed to prevent from limiting free speech, to limit free speech. They want journalists designated a special group and protected under a shield law. A hint of the media concern was a comment by Juan Williams on FOX news about the unprofessionalism of bloggers.
As Harry Emerson Fosdick said, “Democracy is based upon the conviction that there are extraordinary possibilities in ordinary people.” Don’t let them be suppressed in any way.
Lack of professionalism, failure to expose wrong doing and open bias among the media are the main reason the public are not listening to them anymore. Their solution is to enshrine rights they have already failed to uphold and to suppress ordinary citizens who have used a vehicle of free speech to seek the truth. The blog site is equivalent to the Pamphlet during the Revolutionary War. They were the vehicle of the people’s ideas and were critical in achieving freedom leading to the construction of the Constitution. Those freedoms are under attack as never before. This apparently small battle over control of the internet and information is central to the progress toward a full functioning and free society. As Harry Emerson Fosdick said, “Democracy is based upon the conviction that there are extraordinary possibilities in ordinary people.” Don’t let them be suppressed in any way.
 There is a “Check list of American revolutionary war pamphlets in the Newberry library”. Dr. Ball is Canada’s first Climatologist and has been instrumental in bringing science back into the political debate over man made global warming. Find his work here: http://drtimball.com/
Who is a journalist matters
I’m not sure if this helps frame the issue or not. While I certainly don’t like the idea of Diane Feinstein defining who is and is not a “journalist” today, the question remains: Who is a journalist in today’s world where anyone and everyone with a smart phone and a YouTube account can self-publish “news” as a “citizen journalist?” Let me give you two examples in Oregon unrelated to the shield law, but with legal implications nonetheless.
But the question remains, who is “the media?” Can any citizen journalist with a WordPress blog, including some of our more activist OEA members, demand entry to our executive sessions as members of the media
Oregon is the only state that allows the media to sit in on executive sessions of public bodies (I know because I am an elected official of a large suburban school district). Under Oregon law, the media may attend, but may not report on what they learn. In our district, we have had local reporters from the Gresham Outlook and Oregonian sit in on out executive sessions in which we discuss some pretty touch subjects. But the question remains, who is “the media?” Can any citizen journalist with a WordPress blog, including some of our more activist OEA members, demand entry to our executive sessions as members of the media? It hasn’t happened yet to us, but there have been a handful of instances where just such a demand has been made by a blogger who was denied entry as a “legitimate” member of the media. If everyone today is a potential “citizen journalist” then no one is a journalist. It has become the classic distinction without a difference.
On another legal matter, Oregon like most states has several statutes that protect the media from defamation claims. In Oregon, a defamation claim against “the media” can only be brought if a demand for correction or retraction was first made or if the plaintiff alleges and proves actual intent to defame by the media defendant. As you probably know, in a defamation action against a defendant who is an owner, licensee, or operator of a radio or television broadcasting station, or an agent or employee thereof, the defendant is “not liable for any damages for any defamatory statement published or uttered in a radio or television broadcast, by one other than the [defendant] unless” the plaintiff alleges and proves that the defendant “failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.” ORS 31.200. But again, who is a member of “the media?”You may recall an Oregon federal defamation case last year in which an attorney successfully sued a woman blogger for defamation. The defendant, Crystal Cox, represented herself (like Roger Alvey) and lost badly. But one of the issues the court had to address was whether or not this blogger was protected as “the media” for the purposes of Oregon defamation law. The court said No because “The Oregon Legislature has not expanded the list of publications or broadcasts to include Internet blogs.” The court also laid out a series of criteria for a member of the media, which Cox failed to meet:
“Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not ‘media.’”
At some point, someone – whether the legislative or judicial branches – must proffer an objective definition of “the media” or “journalist” if these statutes are going to have any meaningful effect.
I realize there is a subtle difference between “journalist” and “media” but not much. I don’t have an answer for this issue. Perhaps Jonah Goldberg is right: abolish all special protection for “the media” if in fact everyone and anyone can now call themselves a “citizen journalist.” But good luck getting those laws changed in the face of stiff media lobbying. If anything, there may be efforts to add internet blogs to Oregon’s list of “publications.” At some point, someone – whether the legislative or judicial branches – must proffer an objective definition of “the media” or “journalist” if these statutes are going to have any meaningful effect. If not, then I agree with Goldberg and let’s just abolish all special protection for “the media” who now include anyone with a smart phone.
Bruce McCain is a retired Multnomah County Sheriff’s Captain, an attorney in private practice and a member of the Victoria Taft.com Blogforce
Diane Feinstein’s blogger persecution fetish is obscene
By Scott St. Clair
Who died and made Dianne Feinstein the newest William Randolph Hearst deciding who is and who ain’t a journalist? This paraphrase of what every kid in America has said at one time or another to the grade-school busybody who shoves everyone aside to make up her own tetherball rules or decide that her friends get first in line at the drinking fountain, fits California’s Democratic senior U.S. senator to a tee.
Feinstein wants the federal government to define who is and who is not a “real journalist.” During Senate deliberation of a new federal “shield law” to protect journalists from being forced to disclose sources, she proposed an amendment that would limit its application to what she called “real reporters.”
Setting aside for the sake of argument that part of the First Amendment that says “Congress shall make no law…abridging the freedom…of the press…” that makes this a legally-dubious and specious effort, from a policy standpoint, what she is doing is deplorable public policy.
Her amendment “defines a ‘covered journalist’ as someone who gathers and reports news for ‘an entity or service that disseminates news and information.’”
This begs the question as to what qualifies as “an entity or service that disseminates news and information.” Nobody rightly knows. One thing we do know from listening to her, however, is that she’s on the warpath to exclude bloggers – especially teenaged bloggers – from any protection or coverage at all.
Have California bloggers been so unkind to her that she now has a fetish to persecute them?
But journalists are no better since they love to run a closed shop with high barriers to entry erected in the name of so-called “professionalism,” but which more resemble a way to keep the riffraff competition out. Even their professional organization – The Society for Professional Journalists – which was founded as a fraternity in 1909, likes to gussie up the family tree in order to distance itself from your grandfather’s journalism – watch “His Girl Friday” for a comic look at how it was in 1940 – to those who peddle their wares today.
If you want to get in their club, you have to play by their rules or don’t play at all.
All of which is reminiscent of the struggles I had several years ago with the Capitol Press Corps in Olympia when I covered state government for the Freedom Foundation in Washington state. I was there to report the news, dig up stories and tell those who read our blog what was going on. But because I didn’t get paid by an organization whose purpose was to report the news as they defined it, I couldn’t get press credentials, which consigned me to the cheap seats up in the Senate and House galleries, which occasionally had its advantages since I was forced to take a more panoramic view of things that allowed me to uncover a unique form of official chicanery.
Technology and market forces have, and will continue to change, journalism. So, what else is new? Part of that change is discarding some of the old to embrace some of the new.
The muckrakers of the early 20th Century – Upton Sinclair, Ida Tarbell, Lincoln Steffans and others – were disparaged by many of the journalistic elites of their day since the demand for what they wrote and exposed came out of a public appetite for juicy stories whetted by sensationalist “Yellow Journalists.”
Then TV came along to displace newspapers as the number one source of news for Americans, with the Internet making strong inroads to eventually displace the tube.
About the only thing certain in all this is that most Americans distrust traditional news outlets. Sixty percent of those surveyed by Gallup a year ago said they don’t believe newspapers, TV and radio report the news fully, fairly and accurately. What happens when you have a product the public regards as lousy? They stop buying, and the bottom line gets whacked.
Once there were close to three dozen reporters covering the Washington State Legislature and the governor’s office in Olympia, but by 2009, it was tough to find a fourth for pinochle because so many publications stopped sending reporters to cut costs or because it was easier to publish the AP feed.
It’s no better in radio and TV, where bottom-line driven headcount reductions and thinner news coverage is the order of the day.
Yet the honorable gentle lady wants us to restrict the definition of journalist to a dying breed. Maybe it’s because the less there are of them, the better politicians like it. After all, isn’t a journalist’s job to hold politicians accountable – something on the order of speaking truth to power, comforting the afflicted and afflicting the comfortable?
Nah – that only mucks up the journalist’s next gig, which is working for the very ones he’s supposed to be watchdogging.
Back when I covered the capitol for the Freedom Foundation, yesterday’sSeattle Times or KING 5 reporter popped up as today’s “official spokesperson” for this, that or the other mayor, county executive, state agency or even the governor.
Instead of comforting the afflicted and afflicting the comfortable, journalists are seeking out jobs that afflict them with comfort, which makes veteran reporter Seymour Hersh as mad as a wet hen.
Hersh, who received the Pulitzer Prize for uncovering and reporting on the My Lai atrocity during the Vietnam War, thinks that those who pass themselves off as journalists and editors these days should be fired because they’re too cozy with what he calls the “total nincompoops” who run the world.
Quoted at the UK’s TheGuardian.com, he’s especially critical of The New York Times for spending “so much more time carrying water for Obama than I ever thought they would.” And, he contends, the Obama administration stopped informing the American public years ago about what the government was doing and morphed into a full-time auxiliary of the president’s re-election campaign.
He hasn’t much use for any of what he calls “insiders” in journalism today. His solution is for newspapers and news outlets to hire outsiders that cannot be controlled and turn them loose, which brings to mind the lowly blogger.
I know this guy, an outsider, who runs a blog in West Seattle, and he’s taken it upon himself to do what the newspapers and TV stations in Seattle and King County won’t, which is investigate and report on alleged corruption of publicly-funded homeless activists and their cozy relationships with city and county government.
OK, so David Preston doesn’t always follow the AP Stylebook, but his Blog Quixotic performs a valuable public service by investigating how the public’s money is being spent, whether the spending complies with the law and generally what public officials are doing on a matter of significant interest to taxpayers.
But according to Dianne Feinstein, he’s no better than a 17-year-old blogging in his parents’ basement, ergo he’s undeserving of Shield-Law protection.
If he’s not, then nobody is, and maybe that should be so all the way around. There’s a case to be made that shield laws do more harm than good because they promote whispered secrets and half-exposures of the truth.
If you’re going to have one, it shouldn’t exclusively apply to a government-defined class of swells who are already too cozy with those they’re supposed to investigate and upon whom they’re supposed to report.
And what are you going to do when “real” journalists partner with bathrobe-clad bloggers to provide coverage in neighborhoods and on topics the big boys have abandoned? That’s happening, but no protection for the blogger half of the partnership from Sen. Feinstein.
What people want is the news reported to them in an honest and straightforward manner. They no longer care if it comes from their local version of The Daily Planet or TheDailyPlanet.com, a local blog. If the facts are there and the story is accurate, that’s all that matters. If “journalism” gets practiced by a 17-year-old looking into miscues in the faculty lounge or a 70-year-old crusading for a new senior center who uncovers evidence of official misconduct, then so be it.
You don’t have to be a member of the union, work for the right employer, have a degree from the correct school or drink the right whisky to be a journalist. Maybe journalism is and should be like the late Supreme Court Justice Potter Stewart’s famous description of obscenity — probably many think it is already – which he declined to define saying only “I know it when I see it.”
In any event, one clear obscenity is what Dianne Feinstein is trying to do to bloggers.
Scott St. Clair is a journalistic pugilist, born free American man, writer, journalist, and is a member of the VictoriaTaft.com Blogforce
When something is sold as being a creative, forward looking and effective public policy that will serve the best interests of Oregon citizens, I’m a show-me kind of guy. That attitude comes from 35 years of experience with Oregon lawmakers. Lawmakers often are driven by a compelling need to dosomething. They tellcops what they want them to enforce–think cellphones and speeding–which are fairly straight forward. And then sometimes they get in over their heads such as when they tweak language in statutes–think crosswalks and school zones–leaving everything worse and people more confused.
Why does this happen? Too little public policy foresight and too much regulatory testosterone. Most public safety policy, both at the statutory legislative and agency policy levels, sadly lacks operational and tactical savvy. The result is bad public perception leading to poor results and bad case law. Instead of assessing what the damage of a particular program may be, law enforcement agencies often first create the damage on the way to trying to find a fix. Despite the flaw law enforcement agencies, getting little legislative policy guidance, still turn on the enforcement testosterone without appreciating the public perception.
But when it comes to the newest and perhaps the most potent of the all the public safety programs on the horizon, the Oregon Legislature is doing the right kind of fly over when it comes to the use of unmanned drone aircraft generally and specifically in the case of law enforcement operations. The current Senate Bills 71 and 524 along with House Bill 2710 address the limited allowable and much broader prohibited “possession or control” of drone aircraft within Oregon or Oregon airspace . Senate Bill 71 deals with drones operated by anyone or any agency generally. While Senate Bills 524 and House Bill 2710 deal very specifically with the law enforcement component of drone use for the purpose of surveillance, capturing both audio and video recordings for any purpose or as weaponized air support.
So where are the winners and the losers and what’s missing?
I don’t know about the winners, but the Oregon State Police and Oregon Department of Aviation become the responsible parties under this legislation. The Department of Aviation is permitted to license drones and the State Police is charged with establishing a required “Registry” of Drones possessed within Oregon. The penalties for certain crimes committed under Senate Bill 71 range from a Class C Misdemeanor to Class A Felony from operating a drone over the property of another without permission to taking a shot at an aircraft with a drone. Civil awards start at $5,000 in civil damages and the State Police can impose civil fine of $10,000 if you decide not to register your drone. And if my guess is right, and it will be, there will not be one penny of support for creating the position(s) to actually accomplish another mandated task assigned to an already over-committed, understaffed and over achieving police agency. That makes them a loser but a silent one you can bet.
As far as spying on us with an eye in the sky, it’s not that the legislature doesn’t trust the cops, it’s just that they don’t trust the cops. Now I have no problem with curbing the powers of law enforcement and providing legislative guidance, especially in a new frontier of enforcement technology. But the statutory language contained in SB 524 and HB 2710 stomps the potential of all drones with all the enforcement negatives that can be imagined or conjured up instead of considering the positive potential of drones surrounded by limiting language. After reading the statute one might wonder if the cops can use drones for “Search and Rescue” operations without a warrant! On the other hand, a broad enough reading of “the risk of serious physical injury” might allow the cops to use a drone to find a child. Who knows? As an added bonus the legislation also takes a swipe at prosecutors, better known as the District Attorneys, by defining them into both statutes and subjecting them to the same restrictions.
It would help if the list of those who are pushing the statutory restrictions were not primarily a list of the usual suspects always ready to control– if not crush– enforcement innovation. Sadly, the cops were asleep at the drone controls. It should have been a who’s who of Chiefs and Sheriffs who brought this legislation forward. They should have been leading instead of asking when it was too late, “hey, what about this idea…” and bristling when the legislature asks “what idea?”
But all in all the legislation is on the right track. It is a good idea to register drones and generally to limit their use by requiring warrants to go airborne, to adopt policies prior to implementing drone surveillance or enforcement, to limit the retention of drone recordings unless those recordings support active criminal investigation and to impose heavy penalties when the civil rights or the safety of those exposed to drone use is compromised.
The legislation needs more careful definition. Not every airborne vehicle that flies unmanned that can record visual or audio record should be considered a drone for the purpose crushing some creative uses.
But that is for another legislative session. For now let’s hope that the cops and prosecutors take the hint and take the lead back and that the final legislation requires the cops to do what they do best, report back.
Bernie Giusto is the former Multnomah County Sheriff, former Gresham Police Chief, former OSP Trooper, Gresham City Councillor and Tri Met Board Member. He’s also a member of the Victoria Taft Blog Force.