Paying the News-making Pipers : Media: The state has no cause to ban compensation for crime witnesses’ stories.

California now faces a classic case of tough facts leading to bad laws. Confronted with the white-hot light of the O.J. Simpson murder trial, the Legislature rushed through passage of two bills making it a crime for news organizations to provide money or any other benefits to people who “reasonably should know” that they may have witnessed a crime. The law was touted as a response to so-called checkbook journalism.

It is a horrible, poorly written law. It is also plainly unconstitutional.

What’s wrong with a law that stops witnesses from selling information before the trial is completed? Plenty. To begin with, although the sponsors of the legislation talk about protecting the right to a fair trial, most conduct that may involve a crime never gets into the criminal-justice system at all. Of those cases that enter the system, through an arrest or an indictment, a still smaller percentage actually results in trials.

The range of events that involve possible violations of the law is vastly broad: Every time there is a fight, it may be an assault; every aspect of domestic violence involves a crime; anytime someone is cheated, it may be fraud; a campaign contribution may be illegal. The ability to write about all of these events, and many more, is affected by these statutes.

The list of valuable reporting that would have been illegal if these statutes were on the books is long and impressive. In 1974, former Nixon chief of staff H.R. Haldeman gave an interview to CBS’ “60 Minutes” about Watergate, for which he was paid $25,000. At the time, many Watergate prosecutions were outstanding. Today in California, paying for that interview would be a crime. Beginning in 1986, the San Francisco Chronicle began publishing an acclaimed series of essays by Dannie Martin, then a resident of San Quentin. Today in California, paying for those stories would be a crime.

The issue here is not the wisdom of paying people for information. If you don’t like TV shows that pay guests to tell a story, don’t watch them. If you don’t want to read books written by the people who are “witnesses” to events, don’t buy them. The question here is whether the government should make that decision for you.

The criminal-justice system has been dealing for decades with witnesses who receive benefits (usually from the state)--ranging from outright cash to reduced sentences--in exchange for testifying. Sometimes the testimony is truthful and the benefits were necessary to persuade a reluctant witness to tell the truth. Other times, the testimony is false. Skilled lawyers are well-versed in bolstering or attacking the witness who had something to gain or lose from his testimony. And there is, of course, the most basic protection against false testimony that tends to be forgotten in this debate: Perjury is a felony. For more than 200 years, those protections have been sufficient to satisfy society’s desire for fair trials without interfering with the First Amendment. They still are.