Journalists have been barraged by a spate of subpoenas to identify confidential sources and court decisions ordering them to comply. Investigative reporting could suffer if more ensue. Can the media fight back? Does the public care?
By Rachel Smolkin
Time magazine reporter Matthew Cooper's 6-year-old son doesn't read the New York Times or watch C-SPAN, so as Christmas approached he remained blissfully ignorant that his father faced up to 18 months in jail for refusing to reveal his confidential sources.
While a three-judge federal appeals court panel in Washington weighed whether the First Amendment and legal precedent bestow a "reporter's privilege" to protect the identity of anonymous sources, Cooper and his wife decided not to worry their child.
But Cooper did plant the seeds of an explanation as he and his son read Hugh Lofting's popular Doctor Dolittle children's books. In one instance, the inimitable Doctor Dolittle is jailed for freeing a seal. "I explained to my son that sometimes--rarely, but sometimes--people go to jail for good reasons," says Cooper, who was held in contempt by a district judge in October after becoming ensnared in a special prosecutor's investigation into the outing of CIA agent Valerie Plame. "I've been law-abiding in my life and want him to be, so it's a difficult thing to explain."
It's an equally difficult thing to explain to the public and, apparently, to federal judges. Prominent First Amendment attorneys and activists say an alarming spate of high-profile court cases in which reporters have been ordered to disclose confidential sources and other materials could have sobering ramifications for newsgathering. They warn of a chilling effect on sources' willingness to share unflattering information about employers, stifling reporters' ability to unearth--and to tell the public--government secrets such as Watergate and the Abu Ghraib prison abuse scandal. Disturbing new techniques in federal leak investigations, such as asking government employees to sign waivers releasing reporters from confidentiality agreements, could spread into the corporate sphere and imperil reporting there.
In the post-9/11 world of tightly guarded information, editorial boards and media lawyers have portrayed multiple investigations into government leaks in stark terms. A Los Angeles Times editorial in September proclaimed, "There's a new front in the Justice Department's war on terror--a battle against press freedom."
But the media's dire warnings have been greeted by public ennui. At a time of sagging media esteem, the Plame prosecution and other cases reverberating through the federal courts--where protections for reporters shielding sources are weaker than in most states--stir more compassion for the subjects of news reports than for the journalists. Like Cooper, who has pondered a convincing explanation to teach his young son why he would willingly go to jail, media attorneys and activists are struggling to convince the public and the courts that forcing journalists to betray confidential sources will harm the American people as well as the press.
USA Today Editor Ken Paulson calls the recent court cases involving journalists "fascinating and disturbing. There's very little question that the media have lost a lot of goodwill over the years, and I think we're seeing some of that translate into judges' decisions and public reaction."
Paulson, a lawyer and former executive director of the Freedom Forum's First Amendment Center, says that where judges "once saw the press as watchdogs and true guardians of liberty, they're more likely to dismiss us as scandalmongers and sensationalists. A judge grappling with these issues may not have the same reluctance he would have [had] in ordering a reporter to testify or turn over documents. In addition, he's a lot less concerned about a public backlash. If there was ever a likelihood of a public outcry or outrage because a reporter has been jailed for failing to comply with a court order, those days are long gone. A judge is more likely to find himself applauded than criticized."
Despite the lack of public outcry, First Amendment lawyers and advocates describe the legal assault on journalists as highly unusual in its intensity and scope. "Americans face the greatest threat to their right to penetrate and comprehend their government since the Watergate/Pentagon Papers crises of the 1970s," influential media lawyer Bruce Sanford said in an October speech at Syracuse University. "For the public, the silence ushered in" by the Plame investigation "will be cruel and swift and certain."
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says the last time there was such a concentration of court cases seeking reporters' confidential sources or notes was during the height of the Nixon administration.
Dalglish describes the court attacks on journalists as noteworthy not only for the number of cases pending but also for the powerful journalists and media companies caught up in the fray. "Often when this happens, it's somebody like a freelancer named Vanessa Leggett," an aspiring writer who spent nearly six months in jail in 2001 rather than surrender her notes and other confidential materials on a Houston society homicide to a federal grand jury (see "The Vanessa Leggett Saga," March 2002). "The number of federal court subpoenas to big-gun news organizations is really quite amazing."
More than two dozen subpoenas have been issued over the past two-and-a-half years to obtain reporters' sources, notes or other materials.
ï¿½ Reporter Jim Taricani of WJAR-TV, the NBC affiliate in Providence, was sentenced December 9 to six months of home confinement for refusing to reveal who gave him an FBI videotape showing a top aide of the former mayor accepting a bribe. (See First Amendment Watch, page 62.)
ï¿½ Patrick J. Fitzgerald, the special prosecutor in the Plame case, has subpoenaed or sought testimony from at least five reporters in an effort to determine who leaked Plame's identity. Time's Cooper and Judith Miller of the New York Times have been held in contempt and face up to 18 months in prison pending the outcome of their appeal. Miller did some reporting about Plame but never wrote a story about her. Cooper coauthored an online article asking if the Bush administration had "declared war" on Plame's husband, former ambassador Joseph C. Wilson IV, who had charged in a New York Times op-ed piece that the Bush administration exaggerated the Iraqi threat before the war. Walter Pincus and Glenn Kessler of the Washington Post, Tim Russert of NBC and Cooper negotiated agreements allowing them to answer limited questions with their sources' permission; Cooper was then subpoenaed again. Whether conservative syndicated columnist Robert Novak, who first reported Plame's identity, received a subpoena or testified remains a mystery. (Novak and his attorney declined comment for this article.)
ï¿½ Fitzgerald also subpoenaed telephone company records for two New York Times reporters, Miller and Philip Shenon, to find out whether someone in the government told them of a planned 2001 raid on an Islamic charity suspected of giving money to al Qaeda.
ï¿½ Six reporters have been subpoenaed in connection with nuclear scientist Wen Ho Lee's civil lawsuit against the Energy and Justice departments. Of those, five have been held in contempt: James Risen and Jeff Gerth of the New York Times; H. Josef Hebert of the Associated Press; Pierre Thomas, formerly of CNN and now with ABC News; and Bob Drogin of the Los Angeles Times. The reporters are appealing. The Post's Pincus also was subpoenaed in the case.
ï¿½ In December, about a dozen news organizations received subpoenas in connection with a civil lawsuit by bioterror expert Steven J. Hatfill against the Justice Department, the FBI, Attorney General John Ashcroft and others. Law enforcement officials named Hatfill a "person of interest" in the 2001 anthrax attacks but have not charged him. Denise Leary, deputy general counsel for programming at National Public Radio, said in December the subpoena asked for any information referring to Hatfill that NPR received directly or indirectly from any federal employee. That could cover reporters' telephone calls, e-mails, interview outtakes, notes and other materials, Leary said, denouncing the subpoena as a "fishing expedition." The NPR subpoena was later withdrawn. The AP, the Washington Post, Newsweek and CBS are among the news organizations that received subpoenas.
ï¿½ The Denver Post was subpoenaed November 17 by a U.S. Air Force court for notes of interviews with an alleged rape victim and related materials. The subpoena was withdrawn in December after officials at a north Texas base dropped criminal charges against an airman accused of participating in a gang rape and announced his punishment would be handled administratively.
In addition to these cases, several federal prosecutors have sought information from reporters without issuing subpoenas. The U.S. attorney prosecuting the Bay Area Laboratory Co-Operative sports doping case has asked the San Francisco Chronicle for the sources of stories about grand jury testimony, documents and other related matters. The Chronicle has declined to comply.
Jonathan Donnellan, senior counsel for the Hearst Corp., which owns the Chronicle, is the attorney primarily responsible for representing the paper in the BALCO matter. Before the Hatfill subpoenas he had tallied 19 recent instances in which reporters either received subpoenas compelling them to disclose information, or the government requested voluntary cooperation in asking about confidential sources, a move that could preface a subpoena.
"The types of leak investigations you're seeing now have been virtually unprecedented in the last 30-plus years," Donnellan says. The Department of Justice, which has guidelines limiting subpoenas of reporters, "has rarely contemplated seeking confidential source information from the press, much less seeking to compel it through court actions."
Some suggest the culprits may be the people receiving the subpoenas rather than the ones issuing them. Brian A. Sun, Wen Ho Lee's attorney in his civil suit, argues reporters "have some duty ethically to police themselves" and asks, "Are journalists, in their desire to beat each other to the scoop, bringing some of this on themselves?"
Lee spent nine months in solitary confinement before the government's espionage investigation imploded. He ultimately pleaded guilty to a single count of mishandling classified information, and a federal judge publicly apologized to him. Lee is suing the government under the Privacy Act for leaking personal information about him, and Sun is trying to identify who shared such information with the media.
Sun says he offered reporters a chance to name the government agency that employed their sources rather than naming the sources. The reporters rejected that proposal. "Journalists take this rather purist position that it should be their way or no way," he says. "There should be a balance struck."
The landmark Supreme Court decision on reporter-source confidentiality was handed down in 1972 in a case called Branzburg vs. Hayes, in which the justices ruled 5-4 that the First Amendment does not shield journalists from cooperating with grand jury subpoenas. But all the justices agreed newsgathering had some First Amendment protections. Justice Lewis Powell, who joined the majority, wrote a concurring opinion calling for a case-by-case evaluation balancing all citizens' obligation to give testimony with press freedom.
This "enigmatic" concurrence, as Powell's dissenting colleagues dubbed it, laid the groundwork for three decades of lower-court decisions generally recognizing a qualified constitutional privilege for reporters to protect confidential sources and materials. Reporters' testimony usually has been required only if they can provide information vital to a case that can't be obtained any other way.
But in August 2003, a U.S. Court of Appeals panel in Chicago rejected the notion of a federal reporter's privilege in cases involving nonconfidential sources and questioned the concept even in cases involving confidential sources.
In that instance, three Chicago reporters were ordered to surrender tapes of conversations they had with an FBI informant for a planned book; the tapes were subpoenaed by Irish lawyers for alleged terrorist leader Michael McKevitt. The appeals panel, led by the influential Judge Richard A. Posner, adopted a narrower reading of Branzburg than had generally prevailed previously.
"At least in the way courts have been handling it as [of] late, that seems somewhat of a tipping point," Hearst's Donnellan says. "We've seen nothing but bad news since then."
Media attorney Bruce Sanford calls the Posner decision "remarkable" for the solicitude the judges showed an Irish court's request for information. He says that ruling, combined with decisions against reporters by district judges in the Valerie Plame and Wen Ho Lee cases, "have added up to a sense that the constitutional protection for a reporter's privilege is evaporating."
Randy Dryer, a prominent First Amendment lawyer in Utah, also has perceived a changing attitude among judges in the last year to two years. "This is a growing trend that judges are getting more and more hostile to arguments by media counsel that there's a constitutionally based reporter's privilege," Dryer says. "Part of that I think is explained by the overuse of the reporter's privilege. It's being invoked too many times, so it's lost its importance and its stature. It's like the little boy who cried wolf. After you cry wolf so many times, pretty soon the cries are being ignored."
Dryer believes reporters have no obligation to honor their promise of confidentiality if they discover a source knowingly gave them false information. He successfully sought names of the law enforcement sources of two former Salt Lake Tribune reporters who helped the National Enquirer with a salacious story --which the tabloid ultimately retracted-- about the investigation into Elizabeth Smart's kidnapping. The two reporters, fired from their newspaper, gave up their sources because they hoped to avert a lawsuit. "Whether we would have actually done it is another question," Dryer says of hauling the journalists into court. "I don't think reporters should be compelled to reveal the source."
Despite his conviction that reporters use confidential sources too cavalierly, Dryer says preserving their use is critical to the press' role in a democracy and that the courts' "retreat" on reporter's privilege is "not a good development for investigative journalism. I think in the long run, the public interest will not be served. There's no question there'll be a chilling impact on reporting."
No one has articulated the consequences more powerfully than the late U.S. Supreme Court Justice William O. Douglas, a civil liberties champion who authored a blistering dissent in Branzburg. Unless a reporter "has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression," Douglas wrote. "If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended. If what the Court sanctions today becomes settled law, then the reporter's main function in American society will be to pass on to the public the press releases which the various departments of government issue."
Not everybody perceives a larger trend against reporters emerging in today's courts. James Goodale, the former New York Times general counsel who crafted the media's strategy for the three combined cases that led to the Branzburg decision, cautions "we should be levelheaded about all of this before we conclude there's a trend."
Goodale estimates some 500 cases touching on the notion of reporter's privilege have been litigated in the last 30 years, and 49 states offer some protections to reporters through court decisions or "shield laws" that guard journalists from turning over sources. (The lone exception is Wyoming, which hasn't addressed the issue in the courts.) He notes the Plame case involves a grand jury, as did Branzburg, and those always have been the hardest for the media to win.
But Goodale adds that the current high-profile cases "will of course catch the attention of the other courts, and if they all go against the press, those other courts are all going to know about it. They may conclude that the cases in question would be influential in their decisions."
Others also reject the sky-is-falling mentality that has taken hold among some journalists and their allies. In a December 17 column called "First Amendment Chicken Little," Jack Shafer, Slate's media critic and editor at large, decried "alarmists like [Washington Post op-ed columnist] E.J. Dionne, who thrust their fingers into the air to discover 'chilling effects' in the everyday conflicts between the state and press. A stiff breeze of government harassment has always blown on American journalists."
In an interview, Shafer said "it's really important for journalists to protect, defend and extend First Amendment rights." He applauds Cooper, Miller, Time and the New York Times for their actions. "But at the same time," he adds, "let's not forget that wherever you might choose to drop the plumb line over the last 40 years, you would find similar battles [to] the ones being fought today. The big exception is most of those battles are fought in flyover country, hence they're not widely publicized." The Plame and Lee cases, by contrast, are taking place in Washington, one of the nation's two media capitals.
Joseph diGenova, a federal prosecutor during the Reagan administration and an independent counsel in the early 1990s, also rejects the notion of a new anti-media trend in the courts; he sees the current spate of subpoenas and legal defeats for the media as a coincidence. "This is what happens sometimes in history," diGenova says. "Things happen in globs. This is just the way life is."
As an independent counsel probing the first Bush administration's search of then-candidate Bill Clinton's passport file, diGenova briefly considered subpoenaing two reporters from Newsweek and the Washington Post. He decided that doing so would be an abuse of prosecutorial power and would prove "fruitless because they'd never reveal their sources and would be happy to go to jail for all the attendant publicity."
DiGenova believes the Branzburg decision clearly says there is no reporter's privilege and sees an "absolute reason" to issue subpoenas to journalists in Wen Ho Lee's civil case. "Otherwise people will be libeled" and have no recourse, he says. "People have a right to their reputation."
But he lambastes the special prosecutor's handling of the Plame case, saying there's no evidence that a crime occurred--it's a felony to leak the name of an undercover CIA agent only under specific circumstances. He calls subpoenas to reporters in that case "unreasonable and unnecessary."
"This whole thing is ridiculous," diGenova says. When Novak wrote his column, "the liberal press went nuts about this. 'Close to treason,' said one paper, what Novak did. Some of the leftists in the press wanted an independent counsel... They got exactly what they wanted--an independent counsel who's now subpoenaing reporters left and right. Ashcroft never would have done that."
There's little doubt that there are serious consequences to a lack of judicial support. "If no one can truly guarantee their sources confidentiality, it suggests that our industry will either have to rely less frequently on anonymous sources, or that all reporters need to be prepared to do some jail time," USA Today's Paulson says.
Paulson strengthened oversight of the use of anonymous sources in his paper when he became editor after the Jack Kelley scandal (see "Who Knows Jack?" April/May 2004). But he defends their use in some stories because "it is rarely safe or wise to cross people in power... The bookkeeper who sees assets wasted or stolen would never speak up without some protection. A witness to police brutality or malfeasance is never going to come forward unless they're secure that they won't be identified."
Over the long run, a willingness by journalists to endure jail to protect sources is "an unacceptable and untenable basis upon which to proceed," says Floyd Abrams, the famed First Amendment attorney representing several reporters and media organizations in the Plame, Lee and telephone records cases. "At some point, if the law turns against us enough, editors will have to start saying, 'Don't promise confidentiality,' and when that happens, the public will never know what it has lost."
When journalists do promise confidentiality, Abrams notes, they "generally don't know what they're about to hear in response." A source may ask if a reporter wants to know something about Joe Wilson on a confidential basis, and the journalist agrees. The reporter doesn't know the source is about to say that Wilson's wife "is in the CIA, and that Wilson's trip to Niger on behalf of the CIA, therefore, should not be treated so seriously," Abrams says. "If a lesson, therefore, of cases such as this is that journalists must respond to the source by saying, 'No, I cannot promise confidentiality,' or 'I can only do so depending on what you tell me,' the world will change in terms of what information is available." And not for the better.
Abrams says it's hard to know whether the current cases represent a trend, but the consequences may be damaging regardless. "I don't think this is happening all at once by design, but I do think that the effect of it all happening all at once may well be to have a significant and dangerous impact on the ability of the press to gather news."
He is particularly worried about the New York Times telephone records case, which has received far less media scrutiny than the Plame leak investigation. "On one level, the demand by the government for the telephone records of the Times is the single most threatening act because it is an official act of the Department of Justice as opposed to one of some sort of special counsel," says Abrams, who is representing the Times.
Fitzgerald, the special prosecutor in the Plame case, is also a U.S. attorney in Chicago. His Chicago office issued the telephone records subpoena. The Times has sued to prevent the Justice Department from demanding telephone company records or from reviewing those records if the department already has obtained them--a fact Abrams does not know. Fitzgerald declined comment for this story.
Paul McMasters, First Amendment ombudsman for the Freedom Forum's First Amendment Center, perceives more aggressive moves by prosecutors than he's seen since the Watergate era to obtain not just the names of reporters' sources but telephone records and notes. "It seems to me there is a dismissive attitude on the part of prosecutors and courts that gets between not just reporters and sources, but between the reporters and their audiences," he says.
While he calls the potential drying up of sources a "premier problem," he cites additional consequences. These include denying news organizations journalists' expertise on stories they have tracked for months or even years, either because they are tied up dealing with court challenges or because continued reporting on the story is a conflict of interest while those challenges proceed. Court cases also require reporters and their news organizations to spend "huge amounts of time, energy and money in legal costs and possible fines."
The New York Times' Judith Miller has experienced this firsthand. "I'm in meetings with lawyers all the time, reading depositions, writing affidavits, doing press on this," she says. "It takes up a lot of time."
Miller, who shared a Pulitzer Prize in 2002 for stories about al Qaeda, is no stranger to controversy. Her reporting on Iraq's purported weapons of mass destruction sparked biting media criticism when no weapons turned up (see "Miller Brouhaha," August/September 2003). But lately coverage of Miller has become friendlier, as her media colleagues ponder why she faces jail time when she never wrote a story about Plame.
Miller calls her involvement in the case "emotionally consuming," saying "it shuts you down, partly anyway. I've still managed to eke out some important stories on oil for food and bioterrorism, but I'm not operating at my usual speed, anyway, and haven't for several months since this thing began."
She also has noticed a "chilling effect" on her ability to develop new sources. "People are nervous about talking to somebody who's in the center of an investigation, a controversy like this," she says. Although sources she has dealt with in the past are reassured by her silence in the Plame case and "know that I will protect them at all costs," people who don't know her "may just have a few qualms," Miller says. "It's hard to blame them."
Time's Matt Cooper fears such cases will "have a chilling effect on sources who'd worry that their identities could be disclosed because the courts could force reporters to talk." In his own case, "it's probably not had that effect yet. It's probably proven to any sources who might have doubted it that I can keep a secret since I've honored my confidences thus far." But "who's to say down the road that sources of mine or of other reporters won't feel hesitant about opening up?"
Also worrisome to the First Amendment Center's McMasters and others is the "pernicious" government demand in the Plame case that White House employees sign so-called confidentiality waivers giving reporters permission to reveal private conversations. "This is deeply troubling because it isn't voluntary by any stretch of the imagination," McMasters says, predicting the practice will "spread to the business world in no time at all."
He and others fear employees who are handed these forms will feel coerced to sign them, whether or not they're comfortable allowing reporters to discuss confidential conversations. These employees may decide it's wisest to stop talking to journalists in the future. Their colleagues, knowing they might be faced with similar forms, also may opt not to talk to the press at all--even if they have information they think the public needs to know.
During a recent search of the Reporters Committee's files, Lucy Dalglish found evidence of one or two instances in which confidentiality waivers were used in the 1970s, but "nowhere near the frequency that it's being used right now." The Justice Department also agreed to present the "voluntary" waivers to employees in connection with Steven Hatfill's civil suit.
New York Times Executive Editor Bill Keller says he isn't inclined toward paranoia or conspiracy theories. But "one of the things that made me really nervous about the waivers the government is asking for is that could spread to areas we haven't even anticipated," he says. "It wouldn't surprise me if before long a routine condition of employment at pharmaceutical companies or big corporations is that you sign a confidentiality waiver. I don't think it's going to take long for people who control information out of their companies to realize there's a new tool."
Keller can envision a scenario in which new employees at companies are told: "Here's you benefits package, your expense account and, by the way, we'd like you to sign this form that says you waive any rights regarding protection of your identity if you talk to a reporter." While Keller doesn't believe these practices would completely shut down whistleblowers, "it would certainly plant a seed of fear in the minds of employees."
Time's Cooper, who initially was held in contempt last August, gave a deposition in the Plame case after Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, released him from their confidentiality agreement. "I received personal, unambiguous, unreserved approval" from Libby in conversations to speak to the grand jury, Cooper says. "I did not rely on the written waivers that the government has been asking officials to sign, and I don't think those waivers should be honored by journalists."
He did feel "completely confident" after speaking with Libby. "To go to jail to protect the confidence of a source is honorable," Cooper says. "To go to jail for a source who wants you to speak is foolish and unnecessary. Let's not forget why we're doing this. We're doing it to protect the source, and if the source wants you to speak, it's absurd not to."
But weeks later, Cooper and Time received a second subpoena far more sweeping than the first. He was held in contempt again in October.
The Washington Post's Pincus also says he did not rely on confidentiality waivers in weighing whether to testify in the Plame case. He declined to answer the prosecutor's questions until someone who had spoken to him about Plame told Fitzgerald that he was Pincus' source. The source's lawyer and Libby's lawyer both talked to Pincus' attorney and gave permission for him to testify. At that point, Pincus answered questions but did not name his confidential source--he says he basically testified about the conversation he'd described in the paper. He told the prosecutor he had also spoken to Libby but that Libby did not mention Plame. "I was never asked what did take place in my conversation with Libby," Pincus says. "I was only asked what didn't take place, and that's not protecting anything."
More worrisome to Pincus is the Lee lawsuit, in which he also was subpoenaed. "The precedent the Wen Ho Lee case could set is much worse than the precedent in the Plame case," says Pincus, who earned a law degree from Georgetown University in 2001. "His complaint is that if it weren't for the news stories, he wouldn't have been indicted; he wouldn't have been investigated; and he wouldn't have had to plead guilty." Pincus defends the accuracy of stories about Lee as the subject of the government's investigation, contending that if the scientist wins, anyone under investigation "whether guilty or not, and whether the stuff is accurate or not, could sue under the Privacy Act."
Pincus covers the intelligence community and deals with people who are risking their jobs and potentially violating the law when they share information. He feels he should be willing to face the same risks, including jail time. "We ought to be taking a chance when we publish information that's at least equal to the chance the source is taking by giving it to us," he says.
But First Amendment activists such as the Reporters Committee's Dalglish and media lawyer Sanford are pushing for a federal shield law that would protect journalists from revealing government sources. Thirty-one states and the District of Columbia already have such laws, and Sen. Chris Dodd (D-Conn.) proposed a federal law in November modeled on strong statutes in D.C. and New York. "This is not special-interest legislation for the press," Sanford argued in his Syracuse speech. "It is the public interest that needs protection."
But here the media and First Amendment advocates face a public relations conundrum. Recent polls have shown the public has little confidence in the media's integrity as a guardian of the public interest. The 2004 State of the First Amendment survey, conducted by the First Amendment Center in collaboration with AJR, found many Americans think the press abuses its freedom and regularly falsifies and fabricates stories. (See "Low Marks," August/September 2004.)
High-profile reporting fiascoes at major newspapers--most notably Jayson Blair at the New York Times (see "All About the Retrospect," June 2003) and Jack Kelley at USA Today--involved sources that turned out to be not just anonymous, but fictitious. Now the press wants legislative protection to use more unnamed sources.
Complicating the situation is the fact that the cases against reporters now moving through the courts hardly represent triumphs of American journalism. The outing of an undercover CIA agent stirs more empathy for Valerie Plame than for the reporters: To much of the public, the fact that the journalists facing jail are not the ones who disclosed her identity may seem a trifling detail.
Reporting on the Wen Ho Lee investigation too often offered breathless accounts of the government's progress in unmasking a dangerous spy while neglecting humanizing profiles of Lee and sober analysis of flaws in the government's investigation (see "Rush to Judgment," November 2000) . In September 2000, the New York Times published a rare "From the Editors" note about its coverage, which defended its reporters but conceded it "could have pushed harder to uncover weaknesses in the FBI case" and admitted some articles "adopted the sense of alarm" of Lee's pursuers. Journalistic detachment suffered once again in some overheated media accounts describing bioweapons expert Hatfill as a "person of interest" in connection with the anthrax case and disclosing titillating details about his life (see "Into the Spotlight," November 2002).
"It's a very difficult lay of the land," says Geneva Overholser, a professor at the Missouri School of Journalism's Washington bureau and a former Washington Post ombudsman. She calls the Plame and Lee cases "very complex"--less than optimal, certainly, in helping the public understand the nobility of journalists' refusal to reveal unnamed sources.
"At the root of all this is the overuse, and even abuse, of anonymity," says Overholser, who has long urged more restrained use of unnamed sources. "That anonymity is also at the root of most of the scandals we've been talking about," from Blair to Kelley to the flawed CBS "60 Minutes" report about National Guard memos.
She calls Novak's column naming Plame "shameful" and describes reporting on Lee as another instance in which the media should question whether journalists were too "ready to be tools of anonymous sources." Irresponsible handling of such sources, she says, makes it "very hard to persuade people that we are the most judicious and prudent watchdogs" over their use.
Despite her qualms, Overholser endorses a federal shield law and supports journalists who are prepared to go to jail. "There are some cases here which are not the prettiest possible standard-bearers for reporter's privilege, but we've got to stand by reporter's privilege. That doesn't mean the court ought to do the wrong thing and require reporters to out their sources."
The Washington Post's Bob Woodward is perhaps the journalist most closely identified with the use of anonymous sources. He and reporting partner Carl Bernstein pursued a burglary at Democratic National Committee headquarters and, with help from the as yet unmasked source "Deep Throat," their dogged coverage contributed to the fall of a president (see "Watergate Revisited," August/September 2004). In the years since, Woodward has authored 12 books, most of which rely heavily on unnamed sources.
Like Overholser, he sounds troubled about the cases that have become standard-bearers for reporter's privilege. "When you use confidential sources..it's like covert action for the CIA. It's a potent tool, but you have to use it carefully. If you use too much of it in the wrong ways, it can kill you. You need to make sure that it's something that people really need to know, that it's a vital, important story." Of Novak's column naming Plame, "I don't see that the public really needed to know what was published," Woodward says. "It was a story I wouldn't write, quite frankly."
In the Plame investigation, Woodward adds, the spotlight has been trained on the reporting process rather than government wrongdoing. So far as he knows the facts, "it's the wrong case," he says. "This isn't the Pentagon Papers. This isn't the press saying we've got a secret history of why we went to war in Vietnam, and we have an obligation to disclose it."
But USA Today's Paulson disagrees. "Did the public recognize the importance of the Pentagon Papers at the time? Was the Washington Post widely applauded for its coverage of Watergate at the time? Those would have looked like bad cases then," he counters. "When you deal with free press and First Amendment issues, it's very rarely a perfect fact situation."
The First Amendment Center's McMasters argues the Post's Watergate coverage might not have been possible if the DNC break-in occurred now. "What if we were going after Watergate today, in this climate, and prosecutors went after Woodward and Bernstein after the first story and said, 'Tell us your source, or you're going to jail?'" McMasters asks. He notes that in a 1973 civil lawsuit, Woodward, Bernstein and several other reporters and editors were subpoenaed for their sources and notes. A federal judge quashed the subpoenas.
Striving for a broader public appeal, McMasters maintains that "this is not just about the press. This is about the First Amendment rights of the American people to be informed in their discourse about public policy and government actions. This is an issue about the First Amendment rights of public and private employees to talk freely and anonymously about public matters of government. This is about freedom of speech and dissent."
Media attorney Sanford says reporters must do a better job of explaining to the public why anonymous sources are important. "What gets underreported is why do reporters feel so strongly about this that they're willing to go to jail," he says. "I think it's incumbent upon reporters to talk about this--why they value confidentiality, why it's more important to the public than reporters. The headline of our story is 'Judy Miller goes to jail.' We're burying the lead: Why is Judy Miller going to jail?"
The nobility of the cause is self-evident to journalists. But to 6-year-olds, to the American people and to an apparently increasing number of federal judges, the media need to make their case forcefully and hope that sympathetic listeners such as Justice Douglas have not disappeared from the judiciary. As the government and corporations perfect their control of information, a responsible use of confidential sources--and the right to protect those sources--may be more important than ever.
Correction: In the original version of this story, AP reporter H. Josef Hebert's name was misspelled. ###