Journalist Protection Act is an affront to equal protection under the law

Just what the world needs now, another federal crime singling out a protected class of individuals who are more deserving of enhanced punishment than others.

On Monday California Democratic Rep. Eric Swalwell introduced the Journalist Protection Act, making it a federal crime to attack news reporters. The bill subject persons who cause bodily injury to a journalist “committed with knowledge or reason to know such individual is a journalist” to a fine and up to six years in prison.

Eric Swalwell of California (AP pix)

“During his campaign and since taking office, President Trump has created a climate of extreme hostility to the press by describing mainstream media outlets as ‘a stain on America,’ ‘trying to take away our history and our heritage,’ and ‘the enemy of the American People,” said in a press release put out by Swalwell announcing the introduction of the bill. “He tweeted a GIF video of himself body-slamming a person with the CNN logo superimposed on that person’s face, and retweeted a cartoon of a ‘Trump Train’ running over a person with a CNN logo as its head.”

The congressman said such antagonistic communications encourage others to think violence against journalists is more acceptable, he declared.

Oh great, one more hate crime law. Journalists now join the elderly, some races, gender identities, public officials and countless others deemed needful of additional protection from and punishment for something that is already a crime regardless of identity.

The definition of a journalist is “a person who writes for newspapers, magazines, or news websites or prepares news to be broadcast,” which could be just about anyone at any given time, including partisans on the left and right who are really activists, like those arrested during Antifa protests and the conservative blogger arrested for his role in the Bunkerville ranch standoff in 2014.

“Not all attacks on journalists this year have been committed by Trump supporters, but the fact remains that rhetoric emanating from the world’s most powerful office is stoking an environment in which these attacks proliferate,” Swalwell said in his press release. “We must send a loud, clear message that such violence won’t be tolerated.”

No, we must protect all people equally under the law, not single out certain classes.

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Newspaper column: Public has a right to see justice done

Steve Kelly cartoon

Currently playing in theaters across the country is a movie called “The Post,” about  how in 1971 The New York Times and The Washington Post both brazenly defied the law of the land and published excerpts of a highly classified document that has since been dubbed the Pentagon Papers, which outlined how a succession of presidents lied to and concealed information from the American public about events and strategy in the Vietnam War.

The public had a right to know, both papers argued.

There was nothing in the Papers that would have jeopardized American security or troops, just the confidence of the American people in the belief that their leaders would tell them the unvarnished truth.

Today, both of those papers are being less than enthusiastic about the public’s right to know what is in a declassified memo from the House Intelligence Committee that states there are “concerns with the legitimacy and legality” of how law enforcement obtained court approval to wiretap a then volunteer political adviser to  now-President Donald Trump, Carter Page, in an investigation into whether the Trump campaign “colluded” with officials of the Russian government.

The memo indicates Justice and FBI officials were less than forthcoming with the Foreign Intelligence Surveillance Court about the material used to support the request for permission to surveil an American citizen, despite the Fourth Amendment guarantee that citizens are to be secure against unreasonable searches and seizures. The memo specifically addresses the fact the Christopher Steele “dossier” was bought and paid for by the Democratic National Committee and the Hillary Clinton campaign and that the credibility of Steele himself was doubtful after he was quoted as saying he “was desperate that Donald Trump not get elected and was passionate about him not being president.”

Never mind that then-FBI Director James Comey testified that the dossier was “salacious and unverified.”

The Post editorialized that the Intelligence Committee under Republican Devin Nunes of California “has become another front in Mr. Trump’s assault on the law enforcement institutions investigating the president and his associates. House Republicans are poisoning the committee’s relationship with the intelligence community and distracting from real issues demanding attention.”

Poisoning? Distracting?

The editorialists at the Times opened with the dismissive line, “Seriously? That’s all they’ve got?” From there the paper derisively chided the House Republicans for what it seemed to believe is a newly discovered reverence for transparency.

“Since the Republicans are now on board with greater transparency, they will no doubt push President Trump to release his tax returns, as every other major-party presidential nominee has done for the past four decades, won’t they?” the Times taunted.

There was nothing in the memo that in any way jeopardizes national security, but the Democrats on the Intelligence Committee fired off a memo declaring, “The Republican document mischaracterizes highly sensitive classified information …” adding, “The sole purpose of the Republican document is to circle the wagons around the White House and insulate the President.”

Nevada’s Democrats, of course, joined the hooting chorus of naysaying.

Freshman Rep. Jacky Rosen, who is running against Sen. Dean Heller this year, said, “Declassifying this memo, filled with innuendo to support unsubstantiated claims, is a blatant attempt to discredit Robert Mueller’s investigation for political gain. This was all done despite the objections of the FBI, and these attacks undermine the integrity of our federal law enforcement officers.”

Nevada Sen. Catherine Cortez Masto released a statement declaring, “This partisan memo is nothing more than an attempt to distract from the very real issue: Did a presidential candidate’s campaign work with a foreign government to influence our election process? I support the dedicated professionals at the Federal Bureau of Investigation. It is clear that to some Republicans in Congress, it’s more important to play politics than to support law enforcement. No one should ever be above the law.

Including those in law enforcement?

Rep. Dina Titus fired off this retort, “Republicans are willing to jeopardize our national security by attacking and undermining an FBI investigation of one of Trump’s advisers in a memo that has material omissions of fact, distortions, and ulterior motives. … Something doesn’t add up. Trump has something to hide.”

And what is the purpose of classifying a document, but to hide? While declassifying reveals.

For justice to be done, it must the seen, and not cloaked under a veil of secrecy.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Prosecution asks judge to reconsider Bundy case dismissal

Cliven Bundy released from jail. (AP pix)

Who didn’t see this coming?

On Wednesday federal prosecutors asked the federal judge to reconsider her decision to dismiss with prejudice the indictment against Bunkerville rancher Cliven Bundy, two of this sons and a Montana militiaman for the armed standoff with federal agents attempting to impound Bundy’s cattle in 2014 for failure to pay grazing fees and fines amounting to about $1 million.

The reason, as we noted here previously, is that the evidence the prosecution failed to turn over — which prompted the dismissal — had previously been deemed inadmissible and, therefore, could not be exculpatory under the Brady rule.

“To the extent the Court’s dismissal with prejudice is predicated on the materiality of the late-disclosed evidence to defendant’s theories of ‘self-defense, provocation, and intimidation,’ it is in error,” the appeal states. “Because these theories are not cognizable on the undisputed facts, they cannot form the basis of a Brady violation.”

The Appellate Chief for the U.S. Attorney’s Office Elizabeth White further argued, “The government believes the Court’s ruling is clearly erroneous in at least two ways, i.e., 1) it dismissed the superseding indictment with prejudice for ‘outrageous’ and ‘flagrant’ government misconduct predicated on the government’s failure to disclose certain documents that could be used only to support the legally non-cognizable and unsupportable defenses of self-defense, ‘provocation,’ and ‘intimidation’; or arguably to rebut three overt acts (out of more than 70) in furtherance of the alleged conspiracy; and 2) even assuming its findings of discovery violations were correct, the Court failed to consider less drastic remedies or tailor the remedy to the violations, as required by Ninth Circuit law. Reconsideration is therefore warranted.”

The Oregonian cited so-called federal legal experts who said the move was a tactical choice. They could have appealed directly to the 9th U.S. Circuit Court of Appeals instead. “The Nevada prosecutors may believe they can expand on arguments they made earlier and change the judge’s mind, or they may want to include information that they hadn’t presented before but believe they need to now to have in the court record before seeking an appeal,” the paper stated.

In another document the prosecution asked that the indictment of the remaining four defendants yet to face trial — Bundy sons Mel and Dave and two others — be dismissed with prejudice.

The chances of the judge reversing herself are slim, so expect this to be heard by the 9th Circuit.

Lawsuit outlines compendium of allegations against Wynn

If you thought the sexual harassment allegations against Steve Wynn were horrendous, wait till you read the lawsuit filed today accusing him and his compliant board of excess pay and benefits. The Nevada Independent has posted a copy of the 42-page suit.

Most of the claims in the suit by shareholder Norfolk County Retirement System, filed in Clark County District Court, have been reported at one time or the other but the compilation is eye-opening. The suit accuses Wynn, his board and company executives of poor corporate governance and breaches of fiduciary duty at the expense of shareholders.

The suit notes, for example, that Institutional Shareholder Services, Inc. has recommended withholding votes to re-elect members of the Wynn compensation committee, citing “Wynn’s sizable pay packages compared with other CEOs and a severance agreement equating to $330 million that ‘exceeds the upper parameter of acceptable amounts,’ according to a report from ISS last year. Glass Lewis & Co, another advisory firm, also recommended that shareholders vote against the Company’s compensation package, citing ‘poor overall design’ and ‘performance disconnect.’ In fact, Glass Lewis gave the Company an ‘F’ for its pay-for-performance practices for the last two years.”

This past year ISS gave Wynn Resorts its worst ranking for governance risk.

The suit also recounts that the company leases Wynn’s personal art collection for $1 a year, but pays the cost of insurance, security and taxes.

Of course, it also relates the recent allegations of sexual harassment against Wynn, noting the board’s knowledge of and lack of action. The suit says that Wynn’s former wife Elaine Wynn’s lawsuit “accuses Mr. Wynn of using the Company ‘to fund his lavish lifestyle and personal politics’ and displaying ‘reckless risk-taking behavior’ that places the Company in jeopardy and has exposed it to legal challenges. Thus, regardless of whether Mr. Wynn initially concealed the settlement and allegations of egregious misconduct involving the Company, the Board knew of the settlement and allegations of patently egregious misconduct involving the Company by at least 2015 and failed to act and continued to support and recommend to the stockholders Mr. Wynn’s continued leadership and compensation. The Board knowingly failed to investigate the allegations of patently egregious misconduct by the Chairman and CEO and Mr. Wynn’s suitability for his fiduciary positions and regulatory compliance and his suitability as a gaming operator. Knowing failure to act by the Board on the allegations of such egregious misconduct involving the Company constituted a knowing and intentional violation of its fiduciary duties to the Company for which the Director Defendants are liable.”

Wynn’s current employment agree, the suit notes, runs till 2022 and pays him $2.5 million a year.

Then there is this chart:

 

 

Should we have practiced journalism of rote regurgitation?

As in the case of the dog that did not bark, the solution to the mystery may lie in the answer to the question: Why?

On Monday the morning newspaper reported that 20 years ago the same paper, when I was editor, decided to “spike” a draft of an account about an ongoing lawsuit against casino owner Steve Wynn, apparently one claiming gender and age discrimination because one of Wynn’s casinos had created a policy requiring waitresses to lose weight and wear high heels.

I do not recall what was in the story or why it was not published, but I deeply resent implications and innuendo that the newspaper management at the time shirked its journalistic responsibilities. Monday’s story suggests the 1998 draft may have included accounts in court files by some plaintiffs that other women, not themselves, had been sexually harassed by Wynn. The story points out that reporting of court proceedings are protected against defamation litigation and quotes some journalism professor as saying, “Journalism has to be about courage.”

Apparently in the eyes of some, the journalism of verification has been supplanted by the journalism of rote regurgitation.

The code of ethics of the Society of Professional Journalists calls on journalists to “Take responsibility for the accuracy of their work. Verify information before releasing it.”

If someone walks through the front door and hands a reporter allegations of a salacious nature, the reporter would be obligated to verify. Just because someone makes the same allegations but launders them through court filings might sometimes protect the newspaper from litigation but does not absolve the paper from doing its job of responsibly reporting verifiable facts as accurately and fairly as possible. It is not about courage, it is about responsibility to the readers. (By the way, an online forum on responsible media warns, “The fact that documents are lodged with the Court in civil proceedings will not, of itself, attract privilege.” The privilege applies to evidence given in open court.)

The same due diligence would apply to the busboy as well as the wealthy casino owner.

As I said, I do not recall the specifics of this one incident 20 years ago, but the implication that the paper was lax in not reporting something just because it was filed in court is ludicrous and insulting and, dare I say, defamatory.

As for the credibility of the currently barking dog, former Publisher Sherman Frederick points out that longtime columnist John L. Smith resigned when the current newspaper management ordered him to never write about two of the biggest players on the Strip — Wynn and current newspaper owner and casino bigwig Sheldon Adelson — because they had unsuccessfully, repeat, unsuccessfully sued him over passages in books he had written.

 

 

 

 

Profit before proselytizing at the morning newspaper?

Last six-page Viewpoints section

Everybody assumed that when casino billionaire Sheldon Adelson bought the Las Vegas newspaper two years ago for an obscene $140 million — $38 million more than the previous owner had paid nine months earlier — that he intended to use the paper to spread more of his conservative political views. After all, he was spending millions of his gambling-generated assets to support conservative candidates for public office.

Apparently, profit is more important than proselytizing.

Without fanfare and apparently without notice, the Review-Journal recently cut its opinion pages on Sundays from six pages to four and on Wednesdays and Fridays to one page instead of two. This follows what appears to be the purchase of thinner newsprint — possibly down from 32-pound stock to 30-pound, would be an educated guess — as the price of newsprint has increased steadily recently and the threat of tariffs on Canadian paper has been raised.

Buoying this supposition is the fact that since the middle of January, the Las Vegas Sun insert has been running a daily front page announcement saying that it is now charging for access to its online content. The putative editor of the alleged newspaper states that this is because, under the joint operating agreement that requires the Sun to be inserted in the morning paper, the Sun gets a percentage of the R-J’s profits, but there are no profits.

“The current management of the Review-Journal plunged the newspaper into a loss immediately after purchasing the newspaper in 2015. To date, the Review-Journal’s management continues to run a money-losing newspaper,” he writes every day. “We hope they find a way to turn the R-J around in the face of ongoing revenue and circulation decline.”

The R-J bid for that profitability appears to be thinner paper and fewer pages, though considerably more savings could be netted by dropping the 10- to six-page, ad-free Sun insert.

The morning paper has already made a symbolic gesture in that direction. For years the Sun insert has been included in the online electronic replica, dubbed the eEdition, of the printed paper, but two weeks after the Sun started running its daily notice about charging for online content the eEdition dropped the Sun. Petty payback perhaps? Portent of things to come?