Bernie Fine Molestation Charges and the Laurie Fine Tape: ESPN and Syracuse Post Standard Hide the Alligator

So Boeheim Assistant Bernie Fine has been fired. And a third accuser has come forward. And you wonder: if the Syracuse Post Standard and ESPN for many years both had the video secretly taped by one of the accusers of his 2002 conversation with Laurie, Bernie’s wife — in which the clear import of Laurie’s somewhat imprecise statements is an implicit admission that Bernie has illicit relations with young boys — then why did ESPN and the Syracuse paper sit on that video?

They shouldn’t have. But I just ran across a column by that wry, wizened Dave Kindred defending their failure to turn over that tape to law enforcement long ago. Now I’ve always viewed Dave as a sort of journalistic lighthouse — but on this one, his lamp got dim, and no one, apparently, has polished the mirrors in a while.  Here are a few of the holiday poinsettias Kindred has placed in the lighthouse lobby for us:

1.  “The men who wrote the U.S. Constitution… insisted on freedom of the press because they had seen authoritarian power used against defenseless people.”

Yeah, well, I guesssss, though some of the rum-dums, harlots and eraser-heads we’ve so often found manning these press bulwarks up against the government make you wonder a bit about the Continental Congress. I mean, that pirate, liar, fabulist and philanderer Wm Randolph Hearst? Joseph Pulitzer? Judith Miller the lawless seductress? What many of these people had in common was had (have) in common was a raging, amoral ambition. 

2. “They knew the press must be free of governmental control to serve the people’s interests. In turn, it’s the press’s duty to stay at arm’s length from that government lest it be seen as a tool of oppression. “

This is where Kindred’s light completely flickers out. First of all, any plain reading of the Constitution makes clear that the press is not, and never has been, “free of governmental control.” This statement ignores the thumping reality of the jagged judicially-referreed line separating state and press over the last two centuries: the courts are full of cases which grapple with trying to define the proper tension between the power of the state – with its’ necessary concern for insuring public safety and individual rights – and the freedom of the press. Libel laws “control” the press.  And the federal constitution omits any explicit “privilege” protecting press information and sources, but many states provide a privilege for members of the press against governmental efforts to compel disclosure of information. (Some states don’t.) Even in those states which do provide a statutory privilege, that privilege is not “free” from control. It’s a limited privilege. Witness the judicial taffy-pulls about whether a “blogger” enjoys the protection of those state “privilege” statutes. And many states provide zero protection for reporters who fail to report evidence of a crime. So there are many circumstances where reporters are forced to cough up information and , therefore, are quite “un-free” from governmental control.

And Kindred never stops to see the plain distinction between a reporter being forced by law enforcement subpoena to cough up information (which can be resisted, in those states with explicit statutory “privileges” protecting sources), and the entirely voluntary “turning over” of information by a reporter to a DA or the police.

But then Kindred goes on to favorably quote the Editor of the Syracuse paper:

To us, handing over to police materials we didn’t feel confident enough to publish was unimaginable. Look at it another way. When police or the district attorney gather evidence and decide they don’t have enough to charge someone with a crime, do they deliver their evidence to us and say, ‘Here you go, we don’t have enough to prosecute but you might get a heckuva story out of this’? Of course not. We have separate and independent purposes and are often locked in an unsteady dance around information that one has and the other wants.”

This is high school sophomore thinking.  The press is not a fourth “co-equal” branch of government. This “if they never show us theirs, we’re never gonna show them ours” paradigm might generate some kind of emotional satisfaction for all the spilled-coffee cup daily frustrations this Syracuse editor has had in dealing with the cops, because reporters see cops lie, hide, sleep, fabricate, and condescend — and because reporters know cops think reporters are like lice, in that, once one’s there, then they’re always there.  But it’s just plain wrong, and I’m here to argue that they are many circumstances in which a reporter or editor might —  as ESPN did – decide he didn’t have enough reliable data to allow printing the story without raising risk of a libel action, but then responsibly go on and ask himself an equally important question.

That question is something akin to this one:

Did I really just see an 8-foot alligator go through the back yard, and should I report it to the authorities to let them follow-up?

Maybe you’re not sure that it was an alligator.  Or that it was eight feet long.  And maybe you don’t know whether it’s presence was due to the negligence or criminal action of some pet store owner, or some crazed reptile-lover.  But you do know there is indication of some substantial risk of harm occurring to defenseless people.

And, in the Bernie Fine case, ESPN and the Syracuse paper had some credibly indication that Fine was an alligator which had a propensity to seek out children.  So what do you do?  You call the authorities and give them the information. You don’t swear by it’s accuracy.  But you hand it over.  You tell them about the 8-foot kid-seeking alligator.  ESPN should’ve told the DA, the police, or the FBI about the tape.

And when you do that, to protect kids, you’ve still left pristine and undisturbed your “reporter’s privilege” (if there is one in your state) to be used as a shield against subpoena.  And you’ve done your duty to protect against alligators preying on children in your backyard.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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