Protecting the Future of Investigative Reporting
Book by Stephen Gillers
Reviewed by Carolyn Schurr Levin
For better or for worse, journalists became the story in 2018. In addition to being named as Time’s “Person of the Year,” journalists “taking great risks in pursuit of greater truths” were also honored by being called onto stage just before midnight to push the button that began the lowering of the Times Square New Year’s Eve ball, ushering in 2019. “In one of the world’s most famous public squares, it is fitting to celebrate free press and free speech as we reflect on where we’ve been during the past year and what it is we value most as a society,” said Tim Tompkins, president of the Times Square Alliance, the organizer of the New Year’s event.
Although Americans may no longer agree on much, we can probably all agree that 2018 was a difficult year for journalists, and not only because the phrases “enemy of the people” and “fake news” were bantered around so often that they no longer jarred us. (Remember the days when we were all able to agree upon whether a fact was true or false?) Head shaking and hand wringing aside, what can–and should–be done to protect present and future journalists? In “Journalism Under Fire: Protecting the Future of Investigative Reporting,” Stephen Gillers, the Elihu Root Professor of Law at New York University Law School, answers that question, offering provocative, if perhaps wistful, solutions.
Gillers begins with two premises. First, a free press is essential to American democracy. Second, because the First Amendment, legislation, and court opinions are the primary sources of press freedom, the meaning of freedom of the press must begin with what the law says. Based upon these assumptions, he examines the First Amendment’s Press Clause through the framers’ intended meaning, textual analysis, and an intricate and detailed survey of the preeminent press cases (New York Times v. Sullivan, Branzburg v. Hayes, Cohen v. Cowles Media, and all of the other cases we teach in our media law classes). He argues that, although the Supreme Court has in recent decades ignored the Press Clause, the clause nonetheless gives a distinct set of rights to the press that the Constitution does not give to all speakers. Those rights are not static, but must change and expand as new circumstances arise. The press, Professor Gillers argues, needs protection against liability for defamation and privacy invasion, for the right to protect confidential sources without risking jail, and for how it gathers news. Continue reading “Book review: Journalism under fire by Stephen Gillers”