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Opinions are fun. My friends tell me I am someone with lots of opinions and that's fine since I don't get mad at others when they disagree with me. In this same spirit I am interested in hearing yours views as long as you are able to share your views without boiling over. I look forward to hearing from you. I tend to write in the form of short essays most of the time, but contributions do not need to be in this same format or size. Some of the content here will date itself pretty quickly, other content may be virtually timeless, this is for the reader to judge.


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Freedom, Federalism and the First Amendment                                                                                     Print this essay

Posted at: Nov/20/2013 : Posted by: mel

Related Category: Perspectives, Politics & Gov, The Law, Watching America,

One of the bedrocks of our governmental institutions and infrastructure is federalism. This is the constitutional recognition of the legal origins of the United States as a union of independent states. America started, of course with 13 colonies, which evolved to become 13 states. With the passage of time and expansion of our geographic footprint America has gradually added 37 additional states. In these days of big government and overwhelming policies from the national levels of government, it can be far too easy to lose sight of the importance of federalism.

Currently, the federal government is looked upon as a monstrous entity, but its origins are owed to the states. Each of those original states ceded some of their sovereignty to the federal government in exchange for security and the strength of size. The ceding of authority was formally done in writing with the creation of the Constitution. Additionally, the Constitution explicitly states that the governmental powers not ceded to the Federal Government are retained by the states and the people.

President Reagan reminded us of the origins of the country in his first inaugural address when he stated, “All of us need to be reminded that the federal government did not create the states; the states created the federal government.” I suspect it would take someone like Reagan who used to be a state’s governor to openly proclaim this during an inaugural address. He also said that the beauty of the retention of powers by the states is that they are likely to exercise those powers differently and become laboratories of democracy -- hence, Reagan’s famous quip that one of the benefits of living in the U.S. is federalism, because “you can vote with your feet.”

Therefore, if you don’t like the over-regulated environment of Massachusetts or California, you can move to New Hampshire or Arizona respectively. If you don’t like the sales tax in Washington, you can vote with your feet by moving to Oregon. Obviously, the concept of freely moving from state to state is easier said than done. There are the hurdles of finding a new job, moving your household, selling your home and finding new schools for your children. Nevertheless, we are free to travel, and to move from state to state and settle in the state whose freedoms, regulations, tax policy and politics strike a balance we are most comfortable with.

Many states generate “reciprocity agreements” with other states. These are reciprocal agreements that recognize the validity of another state without interfering with their sovereignty. One example of this is a state issued driver’s license. While each state runs their own testing and certification program, they have all agreed to accept the validity of licenses issued in other states. The Bar exam for lawyers is a more restrictive reciprocity agreement. There are only 39 states who fully recognized the Bar exam testing of their peers. There are similar agreements that govern interstate business, licensed engineers, contractors and physicians. The biggest complexity to freedom and federalism is the laws and related punishments that can vary significantly from state to state.

Despite what it may sound like, this is not merely and academic essay into the nature of freedom, federalism and states’ rights. On July 20, 2012, a mass shooting occurred inside an Aurora Colorado movie theater during a midnight screening of “The Dark Knight Rises” (one in a series of movies that are part of the Batman franchise). The gunman shot into the audience with a variety of firearms killing 12 people and injuring 70 others. Within minutes of the shooting, the sole suspect, James Holmes, was arrested in the theater parking lot. As with any tragedy or event of this scale, the news media descended on Aurora in mass. One of those reporters was Jana Winter representing FoxNews.com.

Like all contemporary journalists, Jana looked for something unique that would give her reporting an edge when measured against her peers. To accomplish this goal, Ms. Winters sought to develop sources that could provide this unique information or insight for her investigative reporting. Through her digging Jana learned from sources to which she promised confidentiality that the alleged murderer, James Holmes had sent a notebook to his treating psychiatrist. In this alleged notebook Holmes is said to have described a violent attack he was planning. The psychiatrist in question was at the time an employee at the state-owned and funded University of Colorado.

The information about the notebooks existence was earth-shattering for the Holmes defense because it triggered the argument that a government psychiatrist ought to have known of Holmes’ violent ideas and tendencies a week before he allegedly carried them out in a movie theater. At the time Ms. Winters learned and reported on the Holmes notebook’s existence, all witnesses and investigators in the Holmes case were under a court order not to speak with anyone, least of all reporters. When Holmes’ lawyers learned that Jana had reported on the notebook, they subpoenaed her notes. In response to the subpoenas, lawyers for Fox News moved to quash the subpoena on behalf of Ms. Winters.

The lawyers hired by Fox News argued on behalf of Jana that her sources were protected by a Colorado shield law. That law compels lawyers who are seeking the names of reporters’ confidential sources to seek them elsewhere before approaching the reporter. That same law also permits the incarceration of reporters who decline to obey any court order compelling the production of the names of their sources.

Holmes’ lawyers apparently wanted the names of Jana’s sources because they believed them to be law enforcement personnel who violated the gag order. Criminal defense lawyers would have a field day if given an opportunity to cross examine one of the police investigating the attack if they were caught breaking the same laws they were sworn to uphold. On the other hand, the press, which is theoretically the eyes and ears of the public, enjoy a protected role under the First Amendment as interpreted by numerous Supreme Court cases. Obviously, the news media would have a tough time doing investigative journalism if reporters could not promise confidentiality to their sources.

Here is where federalism enters the picture. Jana lives and works in the state of New York. She was ordered by a state judge in Colorado to reveal her sources and threatened with incarceration. New York law does not permit incarceration for failure to reveal sources. The legal team representing Ms. Winters filed an application in a New York state court to block the order of the Colorado state judge. That application was denied by a trial judge, and that denial was upheld by an appeals panel by a 3-to-2 vote, and in early November 2013 the case was argued before New York’s highest state court, the Court of Appeals with the same result.

The free-speech advocates are arguing that this should be a no-brainer and that the state of New York and their highest court got it wrong. They believe that Jana “voted with her feet” by choosing to live and work in the empire state. Effectively, she should be protected by New York law since she is a New York resident and had returned to New York at the time of the charges. There are of course all the slippery slope arguments under the premise that if whistleblowers and confidential informants are not protected, we will all pay a price in truth and timely public revelations. One of the landmark cases in this vein is the Pentagon Papers (1971) in which the Supreme Court held that matters of material public interest in the hands of reporters, “no matter how acquired…may freely be published.”

There is lots of rhetoric about free speech and I agree that is important. It is also true that the psychiatrist may be deemed to have failed to protect the public welfare; though others will argue patient confidentiality in her defense. I also respect the words of Thomas Jefferson who once remarked “that he’d prefer newspapers without government to government without newspapers.” Nevertheless, I believe this is more about states’ rights and the limits of federalism.

If I am caught driving 75mph or a California freeway posted for 65mph, I have broken the law in California. This continues to hold true, even if I am an Arizona resident where most freeways are posted at 75mph. At the simplest level, if I am an Oregon resident with no sales tax, once I cross the border into California, I must respect their laws and pay local sales taxes. Obviously, if I killed someone in Texas and returned to my home state of New York which does not have a death penalty, New York would still extradite me to Texas which does have a death penalty. Regardless of where you come from, you are subject to the laws of the place you are at. Free speech and the protection of confidential sources are import, but I don’t believe you can cherry pick which laws govern your actions for personal convenience.

When we exercise the flexibility and freedom available to all of us to cross state lines, we have to be aware that our conduct is now subject to the laws of the state we are currently in. I am not sure I believe that Colorado’s law requiring the revelation of confidential informants is a good law, but it is a duly enacted law in the state of Colorado.

The fate of a New York reporter in the state of Colorado is and should be subject to Colorado laws. Ms. Winters can always make the heroic gesture so many reporters before her have periodically done. She can return to Colorado, refuse to reveal her sources and go to jail for some brief period of time being charged with contempt of court. I’m sure when she gets out she will get a Pulitzer Prize for sticking to her beliefs and a hefty book deal to tell her story.

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