We need a bulwark against The State .... And this bulwark is built out of justice and laws."

Today, an appellate court made clear it was a big day for press freedom and protection of confidential-sourced material.  Sadly, this did not take place in the US.

Rather, the German Federal Constitutional court today declared contrary to the German Constitution a police search and seizure of information from a political magazine, "Cicero".  They had published an article about the "radical Islamist" Zarkawi which, the police and justice ministry decided, had quoted or cited to internal documents from the Federal police force.  So, to find out more, they tossed the magazine's offices.  The magazine sued.

Today, the magazine won.  One could almost hear the joy in the voices of the news-reader on German radio, as they reported on the story.  There had been a considerable amount of trepidation in their press, between this case and another scandal which hasn't shown too much of itself lately.  In that latter scandal, their federal intelligence service has been surveilling reporters, apparently hoping to find out their sources.  

(As always, I translate and link to the original, German language article.  If you don't like my translation, you can do it yourself.  Please also note that I do my best, but if you think legalese in American English is hard, have a little sympathy when I try translating the quoted portions of the Court's judgment, i.e., German legalese.  I try, but I'm not admitted in Germany and you shouldn't rely upon my translation for your legal purposes.  I'm not going to translate the photo captions;  the one of the folks in red robes is a photo of the judges at work.  Note the windows.  Lots of light and sunshine.)

Anyway, this was the lead story on the main evening news show, Tagesschau.  

Journalists overjoyed by "Cicero" judgment.

"The judgment is a strengthening of freedom of the press."

     The judgment of the Federal Constitutional Court (the German  equivalent of the US Supreme Court) defending the media against police searches has been echoed with very positive responses from journalists, publishing companies and politicians.  The judgment gives some security to investigative journalists, said the chief editor of the affected political magazine "Cicero", Wolfram Weimer.  The raids in his editorial office had, country-wide, stripped any sense of security from sources of information and from colleagues, and led to a "mechanism of self-censorship." Weimer had sued over the 2005 police search of his editorial offices and won justice before the highest Court in Germany.  

"Mikich:  we need a bulwark against The State"

Speaking about this matter to Tagesschau.de, Sonia Mikich, head editor and journalist of the ARD-program "Monitor" said:  "The judgment means a strengthening of press freedom and more protection of the everyday work of editors.  After the search of the `Cicero' offices, there were colleagues who, thinking deeply about it, considered how to store their confidential files so as to not compromise their sources in a likely police search."  She proposed further expansion of legal protections to defend press freedom:  "Many times, laws are not clear enough.  In that regard, we need a bulwark against The State, because it will always push the boundaries, (and) will always want to know more, than it is entitled to.  And this bulwark is built out of justice and laws."

Proposal:  Legal reforms must follow

The Federal Association Of Newspaper Publishers (BDZV) expressed itself similarly:  We expect from the politicians ("Politik" is probably more clearly understood as ,,the world of politics; people and institutions") that the legal definitions regarding press freedom will be more clearly defined in the area of a better source protection law," said BDZV head guy in charge ("Hauptgeschäftsführer") Dietmar Wolff.  "Going forward, for the media this decision means a better protection against police searches.  This is a further step in the direction of strengthening the protection of sources and, with that, the freedom of the press."  The German Journalists Association (DJV) also expressed a positive reaction:  "The Judges in Karlsruhe have strengthened this important basic right of Democracy."  

The journalist Hans Leydecker, from "Research Network" said, this judgment "secures the protection of sources and thereby our work".  The decision will also have influence on the wider journalist-watching by the BND, and the investigation in the case of the Turk-German from Bremen, and former Guantanamo captive, Murat Kurnaz.  State officials will no longer find it as easy to go after journalists as before, said Leyendecker.

The judgment of the Federal Constitutional Court:

1.  In the course of an investigation police searches and seizures against members of the press are not permitted by constitutional law, if they are exclusively or primarily in service of the purpose of finding out who the informant (source) is (or investigating the source).
2.  The mere act of publication of a government secret (as within the compass of section 353 b of a criminal statute) by a journalist does not reach so far, in view of Article 5, paragraph 1, sentence 2 of the Constitution (GG= Grundsatzgesetz = basic law/ Constitution), so as to provide enough suspicion of aiding and abetting by the journalist in (unauthorized) disclosure of a secret to be the basis for an authorization for searches and seizures under the procedures of a criminal case.

Telephone conversations should be protected.

The journalism organization "Reporters Without Borders" proposes even further legal reforms:  "journalists, who receive information forwarded from sources and put it to use, should not be criminalized.  Therefore, journalists should be exempted from section 353b of the Criminal Code, which criminalizes aiding and abetting unauthorized disclosure of secret information.  To this should be added that telephone conversations of journalists are protected from surveillance, as it already is the law respecting other professions, among them lawyers and clergy."

Green Party vice-leader Hans-Christian Ströbele proposed to the Parliament, that they "draw conclusions from the judgment and undertake a modification of the criminal code."  The State Secretary in the Federal Justice Ministry, Lutz Diwell, warned that in the future "there will be no absolute defense/protection for journalists against government pursuit."  It will remain the case that: "if a journalist, through knowing participation on a breach of state secrets, entangles themselves and develops a corresponding (NB.  "entsprechend" = corresponding; my dictionary shows "entsprechend" has 27 meanings, all more or less "corresponding") plan aimed at a publication.  Then he is culpably involved."

So, all in all, I'd expect a little more leakage on news from the Wah on Terra to be coming to and from the German press in the near future.

The last quote, from the government, seems to indicate that they would still go after a journo like Judy Miller or Novak, in order to get at the government leaker, particularly where the leaker was using the press to carry out a vendetta (or worse).  But, we'll see.

Like Mikich said:  "We need a bulwark against The State, because it will always push the boundaries, (and) will always want to know more, than it is entitled to.  And this bulwark is built out of justice and laws."

Now, if only our media would get their thumbs out and start being a bulwark.

Here's the earlier article, reading which so enlivened the news reader.  From MDR:

Raids in the editorial offices of `Cicero' were unconstitutional
The Federal Constitutional court has strengthened the protections the press has against police searches.  The judges decided that a raid at the political magazine "Cicero" offended the constitutional guarantee of press freedom.  Because the raid had not respected the journalistic right to protection of sources, the editors of Cicero protested against the raid in September 2005.  The event triggering the searches was the magazine's report on the Extremist leader Zarkawi, in which internal documents of the federal criminal police were cited/quoted.  This, the justice ministry deemed to be aiding and abetting the unauthorized disclosure of classified material.  

Last updated:  27 February 2007, 1:33 PM German time (7:33 AM ET)

For what it's worth, here's a link to a photo of the Federal Constitutional Court in Karlsruhe.  This slide show also has a photo of the publisher of "Cicero", and of an edition of his magazine.  It's nice to see a major governmental entity in a major country has such a simple, no-Jersey-barrier, no-planters-to-block-car-bombers, no machinegunners approach to architecture, and is housed in such a pedestrian building.  With lots of light and windows.

It would appear that the German court has gone farther than our own courts have gone in Branzburg v. Hayes, and further than most shield laws.  My sense of the decision, as reported, is that they have come down firmly on the side more speech and less government.  There recently has been a lot of discussion - brought about by the BALCO probes, the video-blogger jailed and S.F. for contempt when he refused to turn over video of a protest, and the whole Libby case - regarding the second, sort-of-overlooked prong of the First Amendment.  This prong, freedom of the press to publish, as opposed to the first prong, freedom of speech, has been taking a beating from government investigations into the reportorial process.  I'd suspect we'll hear more from and about this decision as cases involving subpoenas of journalists, and of their phone records, work their way through the courts here.  

< In defense of Judge Larry | Will the Tide Turn Enough to Stop the Flood? >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort: