Fighting Like Tigers
A conference explores how to protect sources in a hostile legal and political climate.
By Jessica Meyers
Meyers is an AJR editorial assistant.
The journalist-source relationship so essential to investigative reporting has come under assault. Journalists have been barraged with a spate of subpoenas ordering that they identify confidential sources and with court decisions compelling them to comply. The Bush administration has launched leak investigations to find out who shared classified information with the Washington Post's Dana Priest for exposing the CIA's secret "black site" prisons and with the New York Times' James Risen and Eric Lichtblau for revealing the National Security Agency's covert domestic eavesdropping. Three days after these journalists won Pulitzer Prizes for their work, the CIA fired Mary McCarthy, a senior intelligence officer, for unauthorized contact with reporters that included the sharing of classified information.
The confrontations in the courts and the administration's aggressive pursuit of journalists' sources are raising new questions for editors and causing them to scrutinize long-held assumptions about journalistic practices. Should reporters modify their dealings with confidential sources and their promises to them? Should journalists accept waivers from sources to testify about confidential conversations? What should editors do if corporate owners refuse to back them in a legal fight?
To help answer these questions, American Journalism Review, the Knight Center for Specialized Journalism and the Philip Merrill College of Journalism at the University of Maryland hosted a conference April 2 and 3 aimed at top newspaper editors and Washington bureau chiefs. "The End of Confidentiality? Journalists, Sources and Consequences" sought to offer practical guidance on subjects ranging from keeping interview notes to masking vulnerable sources' identities in news stories.
In his April 2 keynote speech, James C. Goodale, former vice chairman and general counsel of the New York Times, urged the press to "fight like tigers" when confronted with subpoenas to surrender confidential sources. "The privilege has become a part of our fabric. Lawyers call it part of our common law. The courts are going to recognize it, and we are ultimately going to win big [with] respect to reporter's privilege," he said.
The conference continued April 3 with two panels, one featuring media lawyers and the other investigative journalists. Gene Roberts, a journalism professor at the University of Maryland, former managing editor of the New York Times and executive editor of the Philadelphia Inquirer, closed the session by urging editors to discuss thorny source questions with their reporters before a crisis occurs. "We hope that what will come out of all this is education and discussion of the First Amendment and source issues in the newsrooms and bureaus of people who are here today and the hope that this will spread throughout the industry," he said.
AJR's Jessica Meyers compiled an edited transcript of the discussion.
Morning session with lawyers:
RACHEL SMOLKIN , moderator and AJR managing editor: I am going to ask you to give us a little bit of an overview of these issues and a few pointers that we should keep in mind as we work through this.
LEE LEVINE , a founding partner of the Washington, D.C., law firm Levine Sullivan Koch & Schulz: I thought I would focus in the beginning on some of the practical issues going forward in the wake of all this, and that is, to what extent should you change the way you do business on a daily basis? I definitely would recommend that news organizations set up policies that the notes are the reporter's and not the news organization's. You should keep your notes so long as you have an ongoing journalistic need for them. Once you no longer have that need, you should get rid of them. I think it is an overreaction to purge them on a regular basis and deprive yourself of that tool of your craft. News organizations, to the extent that they haven't already, should technologically equip their records so they don't show outgoing or incoming calls. That's a technological fix that will make it more difficult for prosecutors to get at phone records that way. It's really important to have discipline when you're sending and receiving e-mails, and it's also important for an organization to have a regular policy of purging e-mails frequently. Again, use good judgment and common sense about the e-mails that you keep.
MARK I. BAILEN , a lawyer in the Washington office of Baker & Hostetler: I just want to emphasize that the reporter's notes when we litigate libel cases are very important. I'd say 90 to 95 percent of the time they work in our favor. But I agree with Lee that you don't necessarily want to frame your whole existence in respect to what you do with notes on, well, are we going to get sued one day about it? I have been asked by several reporters recently about contract principles and the right to confidentiality. They say to me, "If I promise someone confidentiality and I am forced to reveal [that person's name], am I liable to the source?" The short answer to that is yes. It is a valid contract.
SMOLKIN : When you are reporting on a story, how detailed should your conversation be with your source at the outset? You are trying to get as much information as you can. So you potentially chill that process by saying, "If I get a waiver later, is it a real waiver?" Should we really be getting into these kinds of questions with sources, or should we just do our reporting and decide [with sources] if it is on the record and that is all we can realistically do?
LUCY DALGLISH , executive director of the Reporters Committee for Freedom of the Press: I do know a number of newsrooms that have said in the future the editor has to know who the source is, and secondly, there has to be some up-front discussion with your sources. Some bureau chiefs and editors are requiring that instead of journalists offering confidentiality, they make the source ask for it. I hope that one of the outcomes from this current angst that we are all going through is that reporters and sources start having clearer conversations on what the expectations are on either side. I think sources are starting to expect to have that conversation as well.
BAILEN : The starting place should be, "Let's put everything on the record and then move closer to the confidentiality end." From a guiding-principle perspective, it's better to start from everything on the record than not. From a legal standpoint, basically everything that a reporter does could arguably be the property of the news organization as a whole. That complicates the analysis because the work product of the reporter is essentially the work product of the organization.
Participants then discussed whether editors should make unpublished notes and photographs available to the public on their Web sites as one way to avoid direct compliance with a subpoena. Is this transparency or an inappropriate compromise that sacrifices a news organization's autonomy?
DALGLISH : We don't want [the courts] to make our editorial judgments for us. Now with the Internet, I am noticing that editors are putting the whole tape or all of the photographs up. There are a number of editors out there who have compromised in some ways by saying, "OK, you want the photograph, we will put all the photographs up." Then the public gets to see [them] at the same time that the grand jury does. Knowing that you were in a state with a qualified [reporter's] privilege, I would fight it as far as I possibly could. It should only be done if it is your absolute last resort.
LEVINE : I am not sure I entirely agree with you on this one. Fighting for principle, when you can avoid the fight and not sacrifice the principle, it seems to me, is a prudent thing to do, especially in this area when our odds of winning in court are going down.
SMOLKIN : I wondered if you could address a little bit about what to do if you are a reporter and are subpoenaed and, as part of that, what we need to know about the [U.S.] attorney general's guidelines.
DALGLISH : The first thing you need to do is contact your editor. There should be a protocol in every news organization about what to do. Don't go out and do something rash. Do not destroy your notes. Do not destroy your negatives. Keep them, and do what your editor says to do. The key is don't panic, but don't just turn in everything they want.
LEVINE : The [guidelines] obligate the Justice Department before it issues a subpoena to any reporter to consult informally with the news organization to negotiate a resolution that is acceptable to the media organization and the reporter. If all that fails, it effectively gives the right of appeal to the attorney general him or herself. The reason that this period is so unique is because the subpoenas were issued in the [Valerie] Plame investigation by a special counsel who was not bound by these guidelines. What was missing was that second set of eyes. There have been occasions over the years when an overzealous U.S. attorney or an uninformed U.S. attorney in a particular jurisdiction has gone ahead and issued a subpoena to a news organization unaware of the guidelines. As we were saying before, those are some of my favorite conversations to have when a reporter gets one of these, and I get to call the assistant U.S. attorney and say, "Gee, I am really surprised that the attorney general approved this subpoena in this instance," and they say, "Excuse me?" Then you explain to them, and they say, "I'll get back to you on this." And then you never hear from them again.
DALGLISH : I have also talked to some judges who have said that they have caught on to how to get us to comply, and that is that journalists love going to jail. They are just going to start fining you. They aren't going to turn journalists into martyrs. In the civil cases they are much more likely to fine you or your newsroom than to throw you in jail. A civil case has no deadline. A civil case can go on indefinitely. That has some newsrooms very carefully calculating their budgets and thinking carefully how to proceed. [Washington Post Executive Editor] Len Downie told me he worries far more about the Privacy Act cases than about Pat Fitzgerald [the prosecutor in the Plame investigation].
Panelists next discussed whether Congress should enact a federal shield law that protects reporters from revealing sources' identities, and how media organizations should push for its passage.
LEVINE : The profession is not doing a good job of selling to the people, explaining to the public why the privilege is so important. Right now our best hope of working our way out of this is to get a federal shield law. No effort should be spared for newspapers to be doing what they can, educating their readers about why they should be supporting a federal shield law. If we win in the Supreme Court [on a reporter's privilege case], we are going to win by the skin of our teeth.
DALGLISH : I think the [prospects for a federal shield law] are good, but it's not going to happen overnight; [it's] a four- to seven-year process. I am optimistic that we are eventually going to pull it off, but it's not going to happen before the end of this term.
BAILEN : I think the only way it is going to move forward is [through] a collective operation. We are doing that in respect to the federal shield law, but that is not the final answer. I think more legal decisions, that would help, too, and the way to do that is by framing the issue. Your editorial boards editorialize about legislation all the time, and it certainly is fair game to jump into this mix as well.
Afternoon session with the journalists:
REM RIEDER , afternoon session moderator and AJR editor and senior vice president: This morning we heard from the legal gurus. This afternoon we will turn our attention to the view from the trenches. To do that, we have assembled what I think is a terrific panel, a trio of investigative journalists. We are going to have each of our panelists start off with three or four points they want to stress.
DEBORAH NELSON , Washington investigative editor of the Los Angeles Times: This legal assault that we are facing has come at a time when our cavalier use of anonymous sources has come under attack, and our credibility is at a real low with the public. It's really important for us to redouble our efforts to independently corroborate the information through documentation and through on-the-record sources so there is no need to cite the anonymous sources or even hint that the original tip came from a secret source. This has the added benefit of giving the story credibility with the public. It's a step we often skip. We have stopped trying in this town because the information comes easy. We have overused "sources said." We have made it cheap. We need, as editors and writers, to stop at every reference to anonymous sources and say, "Is this essential information I can't get anywhere else?"
JIM TARICANI , investigative reporter for NBC's WJAR-TV in Providence (he received a six-month home confinement sentence for refusing to disclose a confidential source): The legal bill for my case was something in the neighborhood of $700,000. When I was found in civil contempt, I was fined $1,000 a day. NBC, which owns our station, agreed to reimburse me the $1,000 a day. But in order to do that, according to the lawyers at NBC, they had to gross up my weekly salary..so that I could write out a check every day for $1,000. When it came income tax time, obviously they hadn't taken out the taxes. So I had to go back to NBC and ask them if they would pay the income tax and they did, thankfully. As a reporter, when you promise that confidentiality to a source, you are not only making a commitment to the source, you are committing the resources of your station or your newspaper. If there is not a clear line of communication between the reporter and the news manager, and in our case the general manager of the station, things just won't work out right. Everybody has to be on the same page from the top all the way down.
SUSAN SCHMIDT , Washington Post reporter: We need to avoid setting off leak investigations in the first place. It's obvious that it's enormously challenging to deal with this legally, and it's probably only going to get a whole lot worse. The crucial thing for reporters and editors is to think about ways not to avoid writing important stories – and this I am sure goes against the grain of transparency we have been promoting all these years – but obscuring, masking sources. Very rarely now do you see [in the Post] references to classified information. You might not see a State Department cable mentioned in the story because we are trying to obscure the fact that we've seen a cable or have a cable. Sometimes sourcing is going to be more vague and obscure than it has been in the past, but that is basically the trade-off for information. Also, the extent to which we cover leak investigations is essentially promoting them. I think we ought to go back to minimizing the coverage [of those investigations] the way it used to be.
RIEDER : We talked a lot about waivers today. They are obviously the major new wrinkle in these leak investigations. What are your feelings about the waiver? And what about the notion that some defenders of waivers say that the original pledge of confidentiality is a contract and this is simply renegotiating the contract? Do you think there is any validity to that?
NELSON : After the fact to go back and ask [a source] to give you a waiver to disclose their name seems coercive. If they have changed their mind and are willing to disclose [their] name, let them step forward and offer the information.
TARICANI : We now have a policy where if I am talking to a source and I am promising confidentiality, I have to tell the source NBC will fight the court up until the circuit [court] level, and if we are not successful there we will ask you [the source] to come forward, and I need to get that in writing. I don't know if it is network-wide, but we now have to tell our news director who our sources are if we have a source. Prior to my case, we did not have to do that.
SCHMIDT : [Your sources] know if they want you to disclose their name. They'll call you up. They will say so. If you don't get such a call, you can assume the waiver is coerced and meaningless. At the Post, there is a rule now that an editor has to be told who a confidential source is, but a lot of reporters are concerned with that because editors change jobs, they change news organizations, and suddenly that news organization might know who your source is. Len Downie has said, "If you don't want to tell your own editor, you can tell me." I have had instances where I've asked the lawyer to be in the room when I had conversations with an editor about something I found out just because I wanted to have a privileged conversation so the editor couldn't ever be forced to disclose something.
NELSON : There are a number of reasons to talk with an editor about who the source is. However, for that to happen, I think the editor has to be willing to take that vow to go to jail or to pay the price. If the editor is not willing, the editor doesn't have a right to know. I don't know if that conversation is taking place.
TARICANI : Before we can get the public behind us and Congress behind us, we have to really clean up our own act, especially in broadcast journalism, and do more serious reporting on government and public officials as opposed to the gender of Tom Cruise's and [Katie Holmes'] baby. We need to regain the credibility we once had in broadcasting, and until we do that we are not going to be taken seriously. Our industry has a long way to go to do a better job and get back to basic journalism.