When is a reporter not a reporter? Observations on the Ferguson story

My recent post on St. Louis Post-Dispatch reporter Christine Byers, who used Twitter to disseminate information that police wanted to make public, raises more questions worth discussing. But her actions are not isolated.

Recently, the hard-right website Gateway Pundit, which also ran a story based on Byers' tweet, was used to launch another questionable claim intended to exculpate Officer Darren Wilson and raise doubt in the public's mind.

Taken together, the two stories reflect a clear pattern of law enforcement personnel in St. Louis County injecting exculpatory information about Wilson into the public conversation, and potentially influencing prospective jurors. This should be troubling to anyone hoping that Wilson will face prosecution for his actions.

The "orbital fracture" that wasn't

In the Gateway Pundit story, Jim Hoft wrote that sources inside the St. Louis County Prosecuting Attorney's and Police Department's offices leaked information to him that Officer Darren Wilson sustained an "orbital blowout fracture to the eye socket" during his interaction with Michael Brown.

Charles Johnson of Little Green Footballs was the first person to both debunk details of Hoft's post, which relied upon a stock photo of an X-ray as illustration, and to call attention to Hoft's claim that his sources were inside the Prosecuting Attorney's office.

Now that this story has been debunked by other sources, Hoft is in an awkward spot. If he is telling the truth about the source of his story, it would be evidence of prosecutorial misconduct by Bob McCulloch's office, and greatly increase the likelihood that McCulloch will have to either recuse himself, or Governor Nixon will face more pressure to remove McCulloch from the case. 

Will he give up the identity of his source? Considering that his source knowingly fed him false information, it would seem the right thing to do. Unless, of course, he had no such source. Hoft has a reputation for playing fast and loose with the truth.

The dozen witnesses who probably weren't

In Christine Byers' situation, she cites "police sources," not the prosecutor, for her claim of more than a dozen witnesses who support Officer Wilson's version of events. Her tweet may not be of interest to the immediate question about McCulloch's ability to prosecute the case. However, there's another aspect of Byers' actions that may not have occurred to her at the time she tweeted, but was of great importance to her employer, the St. Louis Post-Dispatch.

Both Byers' followup tweet and the official statement of the paper's editor in chief make clear that their paper will not support their reporter if she's challenged to reveal her sources. It's highly likely that before they took any action, Post-Dispatch consulted with its attorneys. After such discussion, there's little doubt that they contacted Byers and dictated to her the precise language of her followup tweet:

Next, look again at the Editor's statement.

Christine Byers is a police reporter for the St. Louis Post-Dispatch who has been on FMLA leave since March. She is not involved in the Ferguson coverage while she is on leave. Her tweets are personal.

She has tweeted today in regards to her tweet Monday: "On FMLA from paper. Earlier tweets did not meet standards for publication."

Gilbert Bailon
Editor, St. Louis Post-Dispatch

When taken together, the paper and its employee are both confirming the following:

  1. She was on leave from her job at the time she posted the tweet.
  2. She was not assigned by her employer to cover the Ferguson shooting case.
  3. She acknowledges that her tweet did not meet her employer's journalistic standards.
  4. Her employer disavows the idea that her tweets are work-related.

This is important because members of the press are widely, though erroneously, believed to have the right to protect their confidential sources if pressed by law enforcement. While international courts and those of other countries respect this right, US courts insist no such privilege exists. Most notably, it is central to the James Risen case that the US government does not recognize his privilege to maintain his source's confidentiality. US Reporters have been jailed for refusing to reveal sources, Judith Miller for one example.

In most of the well-known cases where a reporter's privileged communications are sought by law enforcement, the reporter's employer has stood behind the reporter, funded the defense, filed briefs in support, etc. Likewise, many non-journalistic employers will take a similar approach if an employee is sued or charged with a crime while in performance of job duties in accordance with company policy. 

The St. Louis Post-Dispatch is making clear by the way it has handled the outcry over Christine Byers' tweet that they do not believe she published that message in the performance of her job duties. They are disclaiming any liability for her actions. They are letting her, and the world, know that if Byers experiences legal repercussions over her tweet, she is on her own.

It's unknown at this point whether law enforcement will be contacting Hoft and/or Byers in conjunction with their "reporting." Hoft's situation is the one that's most germane to proving prosecutorial misconduct. Byers' would possibly come up in a wider investigation of the Ferguson and/or St. Louis County police departments, such as the Department of Justice may be contemplating.

Whatever comes next, they're both in tight spots. Stay tuned.

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