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Panama Canal Centennial & More on Shield Laws

By Ben L. Kaufman · January 29th, 2014 · Curmudgeon Notes
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In the midst of all of the harumphing about this month’s chemical spill into a tributary of the Ohio River and the nine-county ban on tap water for days, NPR recorded a West Virginian saying, “Without water, we’re up a creek without a paddle.” 

• Speaking of water, here’s a centennial to celebrate: The U.S. Army Corps of Engineers officially opened the Panama Canal in 1914. 

I went through in 1978 on a supertanker from Panama City on the Pacific to Colon on the Caribbean while on assignment for the Enquirer. My primary story was collecting butterflies for the Cincinnati Zoo’s new butterfly exhibit, but the canal was too good a story to ignore. 

The canal worked as built. Our captain pointed out the biggest change: hinged tile roofs to let aircraft carriers pass without their dramatically curved hulls destroying canal-side structures. No one anticipated carriers in 1914; Americans commissioned the first, USS Langley, eight years later.   

Jimmy Carter signed the modern canal treaty in 1977, eventually turning the entire enterprise over to Panamanians despite dire predictions about the ability of Panamanians to finance and maintain it properly. Those objections mixed realistic appraisals of 1970s Panama with classic colonial contempt for the way natives ran their government, economy and infrastructure. 

Our supertanker had port and starboard licensed canal pilots at the bow and stern. Their job was to guide us through 110-foot wide locks without scraping. In constant touch with the licensed canal pilot at the helm by radio, they did it. 

I recall being told that one of the pilots was the only Panamanian to qualify for the license. It was a classic colonialism; don’t train Panamanians for Americans’ lucrative jobs but complain that no locals are qualified.   

Pilots weren’t the only Zonians — American civilians living and working in the Canal Zone — who rightly feared the 1977 treaty meant the end to their privileged lives. Those anxieties erupted during their first, tense public meeting after treaty terms were explained. That was another story too good to skip. 

None of that diminishes the fact that “The Big Ditch” is one helluva engineering achievement and it’s Panama’s today. 

So forget how we helped create Panama when the Isthmus was part of Colombia or how we screwed newly independent Panama to dig and operate the canal.  

None of that dimmed my photo op from the supertanker bridge: dawn rising over the bow hundreds of feet away. 

• There’s an interesting development in a collision of state shield laws that I wrote about earlier this month.


Colorado State Sen. Bernie Herpin wants to strengthen his state’s Press Shield Law. He says it was too easy to subpoena FoxNews.com reporter Jana Winter to force her to name her confidential sources. 

Winter reported that James Holmes mailed a notebook full of scary details to a psychiatrist before killing 12 people in an Aurora, Colo., movie theater. Her confidential sources were unnamed police officers. 

Winter fought back from home in New York. There, the highest state court said she could ignore the subpoena because Colorado’s shield law was too weak to protect her. 

That law only requires anyone seeking a subpoena to meet three criteria by a “preponderance” of the evidence standard of proof:

“That the news information is directly relevant to a substantial issue involved in the proceeding; 

“That the news information cannot be obtained by any other reasonable means;

“That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.” 

Those are pretty squishy criteria and “preponderance of the evidence” is a very low standard of proof.

A stronger Colorado shield amendment would establish four stronger tests and require anyone requesting the subpoena to show by the more demanding standard of “clear and convincing” evidence: 

a) The information was not obtained in confidence;

b) The information is highly material and relevant;

c) The information is critical to a material issue; and

d) The information is not obtainable from another source.

Failure to prove any one of those four presumably would be fatal to the request for a subpoena to compel a “newsperson” to appear and name their confidential sources.

That amendment won’t solve all of the problems. Colorado Press Shield Law says newspersons are protected only if they work for “any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.”

That is so 20th century. It doesn’t include, even by implication, books, social media or the Internet, where more and more good journalism originates. 

This failure supports my objection to any shield law: Too many people doing journalism would be unprotected and that is an informal government licensing of activity we long thought to be protected by the First Amendment. 

One result is the refusal of fearful whistleblowers to talk to an unprotected/unlicensed news person if promises of confidentiality would not be honored by courts. 

Failure to name confidential sources can be contempt of court and then can involve prison time. Naming a confidential source suggests the career-damaging conclusion that your word cannot be trusted. 

A subtext to my mistrust of shield laws is the broader admonition by lawyers and ethicists: promise confidentiality only when public interest would be compromised by a lack of access to the desired information. 

That high standard challenges the more common practice of promising confidentiality or letting sources go “off the record” without ascertaining why or other ways of getting the information on the record with full attribution.  

Too often, neither reporter nor source considers who’ll take the fall if a court order the confidential source’s identity be revealed. 

• Pew Research revealed that many Americans couldn’t identify NBC news reader Brian Williams. Neither could Poynter.org. Its original story on the poll “identified Williams as a CBS anchor,” according to jimromenesko.com.

• Jimromenesko.com also caught this online headline by London’s Guardian: “Wanking the TV commentators.” Don’t ask me to explain. Eventually, the Guardian corrected it to “ranking.”

CONTACT BEN L. KAUFMAN: letters@citybeat.com



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