Press freedom and coverage in the U.S. and Kosovo: a series of comparisons and recommendations.

• Author: Holden, Ben
• Position: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis

ABSTRACT

The Republic of Kosovo was created from the southernmost section of the former Yugoslavia by American military intervention and subsequent worldwide humanitarian guidance between 1999 and 2008. (1) The resulting nation (which Russia, China, and others do not recognize) (2) was born with one of the most pro-speech and press-friendly constitutions in the world. This Article compares and contrasts four press freedoms in the U.S. and Kosovo: (1) censorship and liability for publication of "truthful" speech; (2) liability for media errors; (3) shield laws; and (4) transparency in courts and records. Where the law and social mores of Kosovo are silent, recommendations are made to adopt the actual or a modified version of the U.S. rule. (3)

Overview

The tension between the press and the judicial branch of government is inevitable in a modern, free-press democracy. This is as true in the 238-year-old United States of America as it is in the six-and-a-half year-old Republic of Kosovo. The constitution may craft broad avenues of rights for the media, or the legislature may grant certain privileges. But it is the courts that are charged with the interpretation of these rights and privileges, leaving these two vital institutions--the press and the judiciary--mutually dependent upon one another. As famed American journalist Edward R. Murrow said: "What truly distinguishes a free society from all others is an independent judiciary and a free press." (4)

So why did it take the United States Supreme Court over 165 years to expressly repudiate seditious libel, (5) nearly 178 years to effectively bar prior restraints arising out of court coverage, (6) and an additional four to find a First Amendment right to attend criminal trials? (7) The clock is still ticking on the reporter shield law and the constitutional right to televise trials. (8)

By contrast, the Republic of Kosovo (9)--founded in 2008, (10) nine years after then-President Bill Clinton bombed strongman Slobodan Milosevic's Serbian Army out of its occupation of the Kosovo Province--has carved out an aggressive media landscape that is nearly as press-friendly as the nation that gave it birth. But Kosovo's pro-media laws and procedures (11) work better in theory than in practice, according to a consensus of top Kosovo legal journalists and even a few candid judges. During the summer of 2013, the author was commissioned by an international nongovernmental organization ("INGO") called the Organization for Security and Cooperation in Europe to work on a two-month project aimed at improving frayed relations between judges and journalists in Kosovo. (12) In meetings with journalists, judges, public information officers, government officials and international nongovernmental agencies, a clear theme emerged: Kosovo wants to "do democ-democracy the right way" and is desperately seeking answers. This Article is written in the spirit of legal exploration and scholarship, in the hope that some shred of its observations might move Kosovo judges toward a more enlightened view of the press, which might in turn generate more accurate and professional media coverage of the courts. Together, these virtuous impulses might move a new nation incrementally toward a more perfect--and press-friendly--democratic union. (13)

This Article engages a limited number of areas of free-speech/open access inquiry. In fact, it raises just four questions for comparison and contrast between the 223-year-old Constitution and Bill of Rights of the United States of America and the six-and-a-half year-old Constitution of the Republic of Kosovo. The issues examined are: 1) penalties for truthful reporting; 2) media mistakes; 3) shield laws; and 4) transparency. Because Kosovo law does not observe the concept of precedent, the law of the nation is determined by a detailed Constitution and the discretion of judges. (14) Its criminal and civil (15) codes sometimes resort to related, influential European courts, which have spawned some of the relevant principles of Kosovo law. In determining "what the law is" in this new nation, this Article relies occasionally upon interviews with working judges, journalists, government officials, the U.S. State Department and Kosovo-based INGO policymakers conducted by the author in the summer and early fall of 2013.

Beyond Sedition in America and Criminal Libel in Kosovo

John Adams was well known as a thin-skinned politician who bristled at criticism of his governance as well as criticism of him personally. (16) Thus, in the years leading up to 1798, Adams became convinced that the only way to quell the criticism was to meet it head on--to essentially outlaw the criticism and jail his critics. (17) His leadership in passage of the Sedition Act was so roundly criticized and repudiated by history, that his successor, Thomas Jefferson, freed those citizens jailed under the Act and repaid their fines by Act of Congress. (18)

Despite never being successfully challenged in a U.S. court, jurists and scholars universally view the law as an abomination. (19) In fact, the United States Supreme Court rejected the validity of the Act in the context of another case involving censorship of material that had the effect of criticizing government. (20) The Pentagon Papers Court reflects the view that the Act, because it places penalties upon accurate or "truthful" speech, was inconsistent with freedom of the press and, therefore, the First Amendment to the U.S Constitution. (21)

In Kosovo, the young nation's moral speech equivalent of the Sedition Act was the existence of, and criminal prosecution for, crimes against "honor." (22) These crimes included the law against "insult" and criminal defamation. (23) Close cousins of seditious libel, Kosovo levied criminal penal-penalties for these "honor crimes" until the end of 2012. (24) The eradication of these laws was a cause for great self-congratulation among Kosovars, who revere America and Americans, and who (at least in the legal community) understood that criminal penalties for words were not an American mode of legal redress. (25)

But prosecution for leaking the name of a confidential witness is universally believed to be good policy among prosecutors and court public information officials in Kosovo; even some journalists take the view that the consequences of such a leak are so grave as to justify criminal action. (26)

Background on Kosovo Court Challenges

Because there is no concept of binding precedent in Kosovo, every case stands on its own. (27) Further, because government corruption--actual and perceived--is a major issue in the nation, many reporters and editors interviewed for this Article say they believe a significant percentage of judges in Kosovo are corrupt. (28) They report the news through this lens. On the other hand, many judges interviewed for this piece say they believe most journalists who cover the courts lack the background and training to do a competent job of reporting on the judiciary. (29) The two sides certainly seem to be speaking different languages. (30)

Much of the law of the new Republic of Kosovo is imbedded in the na-nation's Constitution, and there is heavy reliance on international and European courts for guidance. (31) Because for many years the nation's legal system was run by the United Nations (and its "major case" criminal system still contains parallel courts run by the European Union Rule of Law Mission in Kosovo, or EULEX), the nation has a little-developed history of jurisprudence and tradition in a Western legal sense. (32) But below the level of war crimes, government corruption, and major murder cases, ordinary judges handle the cases. (33) So judges, whom the press does not trust, have great discretion over everyday cases. And the press, whom the judges do not trust, have little guidance or training in covering the courts. (34) In fact, many of the nation's judges are widely perceived by the press to be corrupt and there have been a number of high-profile corruption cases involving various public officials. (35)

Perhaps most challenging, however, is the concept of precedent and the manner in which judges instruct court reporters to create the written record in cases. Essentially, there is no precedent; the judge decides the law and there is one court of appeal. As to the written record, judges have little physical space and often work in cramped quarters. (36) Some trials are held in judges' offices. (37) The courtroom in Metrovica, which was essentially commandeered by Serbian nationalists during the post-emancipation Serbian-Albanian conflict, was, throughout 2013 and part of 2014, illegally held by those persons. During this period the court in Metrovica sat instead at Vushtrri, to the south. Approximately fifteen judges, clerks and other court personnel shared a space that is about the size of an average conference room in an American law firm. (38)

1. CENSORSHIP AND LIABILITY FOR DISCLOSURE OF "CONFIDENTIAL" MATERIAL

   1. Censorship and Disclosure Sanctions for "Truthful" Publications: A Comparison of U.S. Case Law and Kosovo Law

      1. Censorship

         1. The United States and Censorship

            Liability for truthful, (39) non-commercial speech in America has evolved. Historically, speakers and critics of government labored under a speech-chilling protection standard which allowed injunctions and no-fault liability for seditious (40) and group libel, (41) as well as subsequent punishment for antigovernment speech that implied the vague and overbroad "clear and present danger." (42) Currently, speech is protected from prosecution for inciting violence unless it incites imminent lawless action where such action is likely to occur. (43) Speech is protected from censorship except in the most limited cases of national security. (44) The American concept of libel--a false and reputationally damaging statement communicated to a third party--requires, by definition, proof of falsity. (45)...