10:36 AM EST on Friday, December 10, 2004

BY MIKE STANTON
Journal Staff Writer

PROVIDENCE -- The case of Jim Taricani has drawn national attention as a defining moment for the First Amendment and freedom of the press. But it is much more than that, Chief U.S. District Judge Ernest C. Torres said yesterday.

Near the end of a long and dramatic day, as a crowded courthouse awaited Taricani's fate, Torres prolonged the suspense with a 30-minute discourse on the First Amendment, the U.S. Constitution and a defendant's right to a fair trial.

As Taricani's case moved toward its conclusion, it became linked with other high-profile cases around the country in which reporters have been ordered by judges to reveal their sources, including the case of who leaked the identity of CIA agent Valerie Plame.

"Based on what I've seen and heard, the issues have been obscured and distorted by a number of myths that have been created by spin and media hype," said Torres.

In seeking to correct those "myths," Torres said he was ignoring some sage advice he had heard uttered by another defendant who appeared before him: former Providence Mayor Vincent A. Cianci Jr.

Torres remembered Cianci quoting a famous line about the media: "Never argue with anyone who buys ink by the barrel."

"That's generally good advice, but there are times when one has to argue with people who buy ink by the barrel, or own television and radio stations," said Torres.

The judge went on to elaborate on what he described as "five myths" surrounding the case:

Myth No. 1: Taricani uncovered corruption that would not otherwise have been revealed.

Noting that the videotape was part of an ongoing federal corruption case, and was ultimately played at trial, Torres said all Taricani had accomplished in airing it was "to provide a scoop during sweeps week . . . to preview evidence that soon would be presented" at trial.

Taricani and his lawyers have argued that the public was still entitled to see important and dramatic evidence in a high-profile corruption case, and that federal prosecutors had indicated that the videotapes would not be released even after the trial.

But by broadcasting the tape before the trial, Torres said, Taricani threatened to compromise the case.

Myth No. 2: Forcing Taricani to disclose his source will have a chilling effect on other reporters seeking important information from confidential sources.

While the courts have recognized that reporters do have a right to protect sources, it does not extend to someone who breaks the law, said Torres. Taricani's source, Joseph Bevilacqua, committed a crime that was "aided and abetted" by Taricani.

While this case may make reporters' jobs "slightly more difficult," Torres said, their jobs also are tougher because there are laws that prevent them from breaking into people's houses to steal documents, or tapping their telephones to eavesdrop on conversations.

"That's the price we pay for living in a society governed by the rule of law," said Torres. "I suggest that it's a fair price to pay."

Myth No. 3: Taricani is being punished for doing his job.

Being a reporter is "a very important and honorable job," said Torres -- but not a license for gathering news "obtained by others through illegal means."

The judge said that Taricani was not being punished for airing the tape, but for violating the judge's court order to reveal who gave it to him.

The integrity of the criminal-justice system "should concern everybody, even reporters," said Torres.

The judge said that he found it "disturbing to hear thoughtful people in important positions" say that the leaked tape in this instance caused no harm, because the defendants ultimately did receive a fair trial.

That logic, argued Torres, is like excusing a murder attempt because it fails.

Myth No. 4: Reporters have an absolute right to keep their sources confidential, regardless of the law.

Some of Taricani's media colleagues, said Torres, have suggested that this absolute right exists, arguing that a reporter should only have to reveal a source if it's a matter of national security or if lives are at stake.

But the judge said that reporters should not be the sole arbiters. That decision belongs to a judge, operating under the rules of law.

"Just as I am ill-equipped to gather the news," he said, reporters are equally ill-equipped to make legal judgments about protecting a source.

"I'm not suggesting that it's never appropriate to afford confidentiality to a source, but the issue is who decides," said Torres. Reporters, he said, can "act on the spur of the moment, and don't have all the relevant facts."

Myth No. 5: Going after Taricani is an assault on the First Amendment.

"This is the biggest, most misleading myth of all," said Torres. "The First Amendment does not confer on reporters the right to violate the law or to encourage others to do so."

The First Amendment still offers protection to reporters, said Torres, "but this is one of those exceptions."

"There are several assaults here, but none on the First Amendment," he continued. "There is an assault on the rule of law. There is an assault on the criminal-justice system. There is an assault on a defendant's right to a fair trial."

Torres did not elaborate on whom he believes has perpetuated the five myths, but he vowed to post his remarks on the court's Web site, www.rid.uscourts.gov.

"There are very important issues raised by this case," he said. "It's important for the public to understand them accurately."

Mike Stanton can be reached at (401) 277-7724, or mstanton [at] projo.com