sergio hernandez

On That Thing That You’ve Probably Heard About

So, um, a lot has been made about this whole Gizmodo/iPhone/search warrant thing. I’ve put off weighing in (which has been extremely difficult for someone who, like me, is fascinated by issues like media ethics and criminal law), but so much of the commentary thus far has seemed so incredibly off-base (especially regarding the legal, procedural elements of the case) I felt compelled to add my two cents.

But first, standard disclaimer: I’ve been an intern at Gawker Media, which owns Gizmodo, since last July. That said, I learned about this story the same way (and at the same time) everyone else did. I haven’t discussed the story with anyone at the company, I don’t have any insidery details, I’m not a lawyer, I don’t know anything about what the lawyers are actually thinking, and my take on this whole situation is a complete armchair analysis that in no way reflects or represents the position of my colleagues or employers. In fact, my opinion is based almost entirely on too many Law & Order re-runs and a handful of journalism and law classes (including First Amendment and criminal procedure). We all know what educations in those fields are worth these days, so take it with a proverbial grain of salt.

Now, onward!

So, where to begin? Gizmodo is contesting the validity of a search warrant executed last week by the San Mateo police on one of its bloggers’ (Jason Chen) homes. The tech blog says its blogger is a journalist and that the police violated California’s shield laws by seizing his property. At first glance, this seems pretty cut and dried: O’Grady v. Superior Court (2006) 139 Cal. App. 4th 1423 has already established that the state, at least sometimes, recognizes bloggers as journalists, so the search was clearly invalid, right?

Well, if you think it’s that simple, you’ve forgotten one of the fundamental elements of criminal procedure: how search warrants work. The police don’t just decide to go on a fishing expedition, a judge has to sign off on it.

I was curious what kind of judge would, so I faxed a screencap of the signature on the warrant (which Gizmodo had posted on its site) to the San Mateo County Superior Court clerk’s office. They recognized it as belonging to one Clifford V. Cretan, a 62-year-old San Mateo native who has served as a trial and grand jury judge since 2004. Before that, he owned a criminal defense firm for more than 20 years, served as a prosecutor for nine, got his bachelor’s and law degrees from U.C. Berkeley, and is a registered as a Democrat. A Google search found that Cretan had gotten some press in recent years for handing out unusually light sentences to criminal defendants (90 days to a pregnant woman who left her kids home alone while she went out to commit a DUI hit-and-run, three years supervised probation for a bank robber, and 12 instead of 19 years for a man who stabbed his wife to death and robbed seven banks).

So, typical Bay Area, left-leaning, pro-defendant, bleeding heart hippie liberal, right? With more than 30 years of experience? And I’m supposed to believe he signed a search warrant that could spark a media shitstorm and never considered the shield law might be invoked to quash it?

Um.

That implies, to me, one of two possible scenarios: Either the police/DA never disclosed to Cretan that he’d be signing a warrant to be executed on a potential journalist’s property, or Cretan did know and, for whatever reason, decided the shield law would not apply. Either because he didn’t think Chen qualified as a journalist, or because the police/DA already had enough probable cause to suspect Gizmodo had committed a crime.

Turns out it was Option No. 2. Stephen Wagstaffe, the chief deputy district attorney, told CNET that his office had “considered this issue right off the bat” and “had some good reasons why he and the judge felt the warrant was properly issued.” (Emphasis mine.)

This is where things get dicey. If the district attorney ends up filing charges, Gizmodo can — of course — move to suppress the search. If the search is suppressed, and in lieu of any other evidence to support a criminal charge, Gizmodo can then move to have the charges dismissed. That’ll be a trial judge’s call, and one of the things he’ll probably consider in that decision is that Gizmodo paid for its scoop, an act the DA will probably argue was an element of the crime and not something “journalists” do.

Oh, my. Checkbook journalism rears its ugly head.

There are lots of problems with so-called “checkbook journalism” and a lot of reasons journalists shouldn’t partake in it. Some people might cite its unpopularity among “high-brow” journalists, the shaky veracity of information you have to pay for, and the unwanted scrutiny it might invite (both from the public, and, in this case, The Man).

There are arguments to be made for all of that, but my problem with it — especially the way it’s been touted here — is that it threatens to make reporters not only lazy, but obsolete.

The problem with checkbook journalism, of course, is that it’s the ultimate commodification of news. “Checkbook journalists” are no better, necessarily, than “access journalists” who just lie down and take it so they can get a story. Buying a story is not some grand achievement that makes you any better than “access journalists.” It may not require you to prostitute yourself or set aside your integrity or censor yourself the way “access journalism” does, but it’s still nothing to brag about because it’s hardly some demonstration of great skill or talent — it just says you happen to have the fattest wallet. (Former Gawker Weekend Editor Foster Kamer actually pointed this out to Nick Denton, who skillfully dodged the question.)

Checkbook journalism is also, in many ways, the embodiment of what the so-called “creative underclass” (and, ironically, Gawker, in its early years) decries: the unwarranted and self-perpetuating success of people based solely on their wealth and power and without regard to (and to the detriment of those with) talent or ability.

The implications here should scare you: Wealth becomes the great equalizer in the worst possible way. When news businesses just start buying news, your value diminishes because the company still gets a return on its investment regardless of whether you or the unpaid intern write the story. What draws the page views is the phone, not you. When you only have the phone because your boss has the money, you become disposable. You become replaceable.

Now, that isn’t to say checkbook journalism is all bad. There are certainly stories that serve the public interest and may not otherwise come to light if no one is willing to pay for them, and as long as journalists vet their sources and report their story with integrity, checkbook journalism can still be very useful. Maybe even good, sometimes!

But it’s not exactly smiled upon by the pantheon of journalism ethicists, and that — typically — is where a judge will defer when he tries to decide, “Is a blogger still a journalist when he has to pay $5,000 for his story?”