Kind of Confidential
With federal judges rejecting reportersï¿½ promises to keep silent about conversations with confidential sources, news organizations are warning sources that pledges of anonymity arenï¿½t absolute. Just what does confidentiality mean in this turbulent era?
By Lori Robertson
Lori Robertson (firstname.lastname@example.org), a former AJR managing editor, is a senior contributing writer for the magazine.
In late March, Jim Taricani met for the first time with an anonymous source, who showed the investigative reporter some documents. The papers were critical to a story he was covering. The two discussed the documents for about an hour, and then Taricani, who works for Providence, Rhode Island's WJAR-TV, asked what level of protection the source was seeking. "'I want total confidentiality,'" the reporter recalls his source saying.
Taricani then explained the policy he had been told to present in such situations by Media General, WJAR's owner. "I actually had to tell him that I would protect his confidentiality, if we were investigated, up until the 1st Circuit Court of Appeals," he says. "If we lose at the 1st Circuit..I would need him to sign an affidavit saying he was the one" who provided the documents.
The reporter is no novice when it comes to protecting anonymous sources. In late 2004, Taricani was handed a six-month home-confinement sentence for refusing to reveal the name of a confidential source who gave him a videotape from an FBI investigation into corruption among Providence officials. Taricani's latest source was quite familiar with his case and said he'd be glad to sign the document. "Lucky for me," says the reporter, "he agreed."
Such a detailed agreement is one way to cope with a precarious legal landscape studded with cases in which a reporter's privilege to keep confidential sources a secret has been rejected in court. The parade of high-profile journalistic martyrs, from Vanessa Leggett to Judy Miller to the BALCO Boys, has turned reporters into law school candidates, as well-versed in the legal implications of confidentiality as the ethical ones. And the emergence of the get-out-of-jail waiver has brought the seemingly sacrosanct notion of vigorously protecting anonymity into question. Is confidentiality a philosophical, idealistic notion of forever guarding a source's identity until the person's death, ï¿½ la Bob Woodward's promise to Deep Throat? Or is it simply a practical matter to be carefully negotiated to keep reporters out of jail and their publicly traded companies out of contempt of court?
In this "new world" or "current climate," as many journalists and media lawyers call today's risky environment, anonymity is a balance of both. Individual journalists and media companies are examining editorial policies and questioning just how detailed a conversation reporters should have with sources and how far they reasonably can--or should--protect anonymity. There are the purists, sure, who shun the concept of source affidavits--and Taricani's agreement is much more specific than what many news organizations suggest. But in the industry there is plenty of talk of "Mirandizing" sources and a renewed discussion of what exactly these promises mean.
There is some debate about how much the practice of subpoenaing reporters has truly increased (see "Tallying the Subpoenas"). But Eve Burton, for one, has documented a major change in the atmosphere. As the Hearst Corp.'s vice president and general counsel, Burton's best-known case involved two San Francisco Chronicle reporters who refused to say who leaked them grand jury testimony in the BALCO sports steroids investigation. The subpoenas those journalists received were just part of a great tide. In late March, Burton said the company had received its 100th subpoena in a two-year, eight-month time frame. The count from the two years prior: no more than 10.
"It was such a small number before, it never occurred to us to track it," she says.
"For whatever reasons, there are a number of news organizations..getting a significant increase in subpoenas, and for whatever reasons, they don't want to share that publicly," says Burton, whose staff now includes a five-person subpoena task force and two people in Washington working to get Congress to enact a federal shield law. She hypothesizes that news organizations may be cooperating in some instances and, "not unintelligently," turning over information.
"It's an awkward time right now," says Sandra S. Baron, executive director of the Media Law Resource Center. "It's possibly a transitional time as people are going from the old modes of operation to what may become the future modes of operation, and in between you see sources that are anxious and you see reporters trying to work out, 'How do I convey accurately what I need when I deal with sources that require some form of confidentiality?'"
In an interview in the New York Times in March, lawyer Jane Kirtley equated a conversation with a journalist to a talk with law enforcement officials. "Maybe the time has come when reporters should be giving their sources Miranda warnings," Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota and a former AJR columnist, told the Times.
She explains: "I was being a little facetious, but just a little bit." At the moment, journalists are not investigative arms of the government, she says. But if they no longer have protection, and if they're not willing to be found in contempt of court and go to jail, they will find themselves in situations in which the government demands information and they simply hand it over. If that's the case, Kirtley asks, "then how is it different from a source talking to a police officer?"
Dan Bradley, Media General's vice president of news for the broadcast division, says he has been urging reporters for several years to obtain written agreements from anonymous sources.
"We ask the reporter to try to get the source to agree to signing a document..that would lay out the parameters of the steps the reporter will take to protect the source," he says, "and at what point would [the source] grant permission for that reporter to reveal the source."
As of May, the company's guidelines did not require journalists to get such agreements, but he said they would likely be updated to include the stipulation as "a hard requirement."
The standard agreement may not include the exact language of Taricani's pact, says Bradley, adding it will be "broad enough to be practical and still be specific enough to be helpful."
Taricani says he was under the impression that the policy was "pretty hard and fast." But if a story were of great importance, a Watergate-level event, and a source wasn't going to sign an agreement, it's his sense that WJAR and the company would discuss the situation. "It seemed to leave the door open for at least some leeway."
Conversations with sources about written agreements are awkward, he says. But the two times he has asked sources to sign agreements since Media General bought the station last year, they've done so. In both cases, "the likelihood of getting investigated was very slim," he says, adding that the sources realized he would probably get documents they had given him through Freedom of Information Act requests.
"I cover the mafia here," Taricani adds, which requires obtaining confidential investigative reports. The conversation in such a case would involve asking a law enforcement employee, "Would you give yourself up?"
"I don't know what I would do," he says of asking a source in a more sensitive story to sign an affidavit. "I would feel so uncomfortable."
Taricani says he's sure that lots of stories simply are not being published because news organizations are telling their reporters they can't use confidential sources or because reporters are required to obtain affidavits, as he was.
Bradley says that "while costs are always a concern," the reasoning behind the agreement has more to do with journalists going to jail.
In fact, after a string of high-profile media losses in the courts, some news organizations are suggesting a softer version of what Taricani has said to sources. Other policies are nothing new--they've been on the books for years--but they've been highlighted in this subpoena-filled environment.
The Dallas Morning News changed its policy in the late 1980s to require reporters to tell unnamed sources that "in rare instances..they could be identified if lawsuits involving coverage were pursued and efforts to keep them confidential were exhausted in legal disputes." (See "Waivering," February/March 2006.)
Other organizations have been much less strict, asking that reporters have a conversation--when they feel comfortable doing so--about when and whether a source may come forward should a court battle erupt. Andy Alexander, Washington bureau chief of Cox Newspapers, developed a list of frequently asked questions to encourage reporters to clarify confidentiality agreements with sources.
New York Times Executive Editor Bill Keller, in a speech last October at the University of Michigan, said: "I know a few reporters who now make a habit, after learning what the source knows and before writing a story, of negotiating a kind of verbal contract. It may go something like this: 'I will keep your name out of the paper, and if I am subpoenaed as part of a leak investigation my paper will fight it. But if we lose in the courts, I do not plan to go to jail or allow the paper to be fined into bankruptcy.'"
George Freeman, the Times' assistant general counsel, says that language is a suggestion reporters might consider in appropriate instances. "But there is, and can be, no firm policy because almost every transaction with a source is different," he said in an e-mail relayed to AJR by Times spokeswoman Catherine J. Mathis.
Such gently suggested conversations may be fine, but some reporters bristle at the thought of telling a source that at some point they'll no longer protect him or her.
San Francisco Chronicle investigative reporter Lance Williams, who, with fellow reporter Mark Fainaru-Wada, faced an 18-month jail term in the BALCO case, gets really uncomfortable when the subject of "Mirandizing" comes up. "That sounds like a suggestion from somebody who doesn't actually deal with sources in the real world," he says. "If you start telling them the circumstances under which you would sell them out, they're going to get out of there."
Williams says that conversation isn't a real solution, adding, "I'm not going to do that... The cutoff point for the reporter in the newsroom is whether or not you decide to use the information." If you use it, you've made the decision to face possible jail time.
Chronicle Editor Phil Bronstein sees problems with written source agreements. "I think that that is an understandable reaction to what is going on, but I think it would have an extremely detrimental effect on the ability of reporters to maintain confidential sources." He says he's not an absolutist on the subject, but thinks such agreements could become narrower--a slippery slope in which the courtroom cutoff point slides lower and lower. The Chronicle's policy--which was reviewed and not changed in the wake of the BALCO case ï¿½ does encourage reporters to discuss the issue. "The reporter should try to seek a guarantee that the source can be named in the event of a lawsuit," the policy reads.
Dianna Hunt, a longtime investigative reporter and treasurer of Investigative Reporters and Editors, worked for the Dallas Morning News for five years, the Houston Chronicle for 13 years and is now assistant government affairs editor at the Fort Worth Star-Telegram. "We don't have strong support in Texas for reporters in general, so I always fully expected to be called before somebody and have to refuse to say who my sources were," she says. "And I believed fully that I would go to jail."
She never had to do either, she says, but such concern "makes you very careful in how you use anonymous sources." (The Texas Legislature is considering a shield law.)
Hunt says the sources she used at the Morning News were not overly concerned with the paper's policy, because they didn't feel they were in a position where court proceedings would affect them. But she "never felt comfortable" telling them she and the company might divulge their identities.
Like Taricani and Hunt, who haven't yet had a problem securing an agreement of limited confidential protection, Fred Schulte has navigated such contracts during more than 25 years of investigative reporting. Schulte, who is with the Baltimore Sun, is a self-described "documents man," one whose brand of investigating involves securing papers--documents whose distribution, in some cases, is a crime. He says that he tells sources of such information that he can protect them up to the point of a grand jury investigation. But if he is called before a grand jury, he would lose that ability. All of his sources have agreed with that.
"I've never had a situation where a source wanted to see me go to jail," Schulte says, stipulating that a reporter needs to have this discussion up front. "You have to have that conversation," he says, because "you really can't protect them." His sources have said, "'Sure, I understand. If you get called before a grand jury, what are you supposed to do?'"
While judges in recent high-profile cases have been unwilling to recognize any sort of reporter's privilege, other writers still maintain an unwavering policy on anonymity. "Just the word 'Mirandize' has a spooking effect" on potential sources, says Vanessa Leggett, a freelancer and author whose refusal to share confidential-source information with a federal grand jury early this decade landed her behind bars for 168 days. The words "Miranda" or "waiver" imply "a condition being set on a principle that's supposed to be absolute."
Leggett's concern is the message sent to members of the public--and the potential whistleblowers among them--when reporters give up confidential names and information. "Unfortunately when we make deals with prosecutors..or agree to testify," she says, "all those nuances are lost on the public." All they understand is that the journalist gave up.
In her case, she says full protection was understood and at times explicitly stated. "The nature of my story," a book about a murder case, "was such that people wanted the protection not only for their name's sake, but some were also concerned with their personal safety and for lawsuits and for job termination."
Hearst's Eve Burton says the question she would ask is whether the reporter is willing to go to jail, not whether a source would come forward. Is the story important enough that you are willing to go to jail? she asks. Are you ready to make a promise you can keep?
During the BALCO subpoena fight, she would say to Williams and Fainaru-Wada, "'If you can't handle it, you know what, there'd be some bad press, but don't ever feel that you need to do this more than you want to do it,'" she says. "I think it's my job to realize that these are people..and at least ask them when it comes to incarceration, 'Are you sure?'"
She cites one recent instance in which a reporter was very nervous about possible legal action. Burton told the reporter she couldn't guarantee that if he promised confidentiality to a source, he wouldn't be subpoenaed. The reporter discussed the situation with his wife, and "he made an entirely intelligent, rational decision" not to promise confidentiality. Burton says the company tried, unsuccessfully, to move the source to another reporter. "So we lost the story."
Washington Post Executive Editor Leonard Downie Jr. says reporters at the Post do not routinely have in-depth conversations about possible legal ramifications. "We don't feel the need to tell sources that we're going to do anything but protect their confidentiality," he says. He adds that each case needs to be thought out individually, and there could be a reason, such as a libel suit, that would cause the reporter to go back to the source and talk about the agreement.
Downie says many sources the Post deals with are well aware that they could be the subject of a leak investigation. "We don't have any need to warn them of that particularly. Instead, we may warn one of our reporters..'Here's a situation where there may be a subpoena... Is that what you're willing to do here?'"
In the Valerie Plame leak investigation and the trial of I. Lewis "Scooter" Libby Jr., Post reporters Bob Woodward, Glenn Kessler and Walter Pincus received waivers from their sources to testify. But, Downie says, "We didn't break any [confidential] agreements." In those instances, he says, the source made it clear that the agreement did not preclude testifying, so accepting the waiver didn't violate a confidentiality pact.
The agreement, he says, is between the reporter and the source--not the newspaper and the source.
Other companies see this differently. Time Inc. developed new guidelines after it unsuccessfully fought a subpoena to reporter Matthew Cooper in the Plame investigation. The policy is more like a Miranda warning for reporters than for sources, raising the bar for when reporters should grant confidentiality and making it clear that the company can't protect notes or e-mails on company property.
The guidelines are simply that: There's no script for nailing down a source agreement. "We're living in a new world here, and we're leaving it up to each reporter how best to proceed given what these guidelines say," says Time Inc. Managing Editor Jim Kelly.
Time Inc.'s guidelines draw a distinction between "anonymous"--a promise not to publish a name in a story--and "confidential source status"--which carries legal risks. "There may be occasions in which the only way to keep a promise of 'confidential source status' is for the reporter to serve a jail term for civil contempt of court and for Time Inc. to pay substantial fines," the guidelines read. "There is also a risk that a court might hold a reporter and Time Inc. in criminal contempt... As a division of a publicly held company, Time Inc. might be unable to accept a finding of criminal contempt without obtaining a supporting resolution from Time Warner Inc.'s board of directors."
Reporters should get approval to make such promises from the managing editor or Time Inc.'s editor-in-chief. "If the editors ultimately decide they can not grant confidential source status, the reporter should inform the source that, while we are willing to litigate vigorously to protect our sources, we cannot guarantee anonymity. If the reporter and source can not reach an understanding, reporters and editors can not publish the information."
Kelly says the new guidelines grant greater protection to confidential sources than the old rules, but not every anonymous source will rise to that level. "In this current climate, no one talking to a Time Inc. reporter should assume that no matter what information they're giving us that Time Inc. is going to fight it all the way up to the Supreme Court." A lot of what is said to reporters, he adds, doesn't require that type of commitment.
When then-Time Inc. Editor-in-Chief Norman Pearlstine turned over Matt Cooper's notes and e-mails--after the company had fought the subpoena up to the U.S. Supreme Court--he faced plenty of criticism in journalism circles and from Time Inc. staffers. "There were some reporters who felt the company had kind of cut the legs out from under Matt Cooper," says Kelly. With the new guidelines, Time Inc. "wanted to explain the process by which we can avoid that perception in the future." (Cooper has left Time and now works for Portfolio magazine.)
Pearlstine's yearlong involvement in the Plame case was a crash course in age-old journalistic tenets on sourcing. "I just taught myself an awful lot that I thought I already knew," he says. "There are not clear rules."
The result of those lessons: "Off the Record: The Press, the Government, and the War over Anonymous Sources," Pearlstine's book, to be published in June.
One subject he explores is the difference between "anonymous" and "confidential"--the latter conferring a much deeper obligation in his view. Pearlstine says it was completely appropriate to fight the subpoena seeking Cooper's source. But Cooper's interview with Karl Rove was on deep background--meaning that the information cannot be attributed to a source--and did not rise to the level of confidentiality, he says. Rove's name was in e-mails that a couple dozen people at Time could access. "By any definition of who confidentiality should be extended to, in my mind it didn't meet the test."
Pearlstine thinks journalists rely too heavily on unnamed sources, a problem highlighted by recent legal cases, specifically the trial of Scooter Libby. "There are a number of reporters who presume that every conversation with a government official is confidential. And I think that really leads to bad journalism," he says.
Seattle Post-Intelligencer chief investigative reporter Eric Nalder says some reporters too readily accept information on background or blithely accept as fact that political sources, such as congressional staffers, can't talk on the record.
Nalder begins his confidential source relationships with the belief that the source will eventually go on the record. His agreements start with a conversation on background. What he says to the source varies, but usually, he says, "I tell the person that at some point in the near future I am still going to try to get you to go on the record and as you become more comfortable with the process of my reporting..that you're very likely to go on the record." Nalder calls it a psychological technique to get the source to start thinking about the need to go on the record. He then explores "their reluctance," examining why the source can't be named. That process has led some to go on the record, he says. Nalder later uses a technique he calls "racheting" to get one piece of information attributed, then another, then another.
Geneva Overholser, a professor at the Missouri School of Journalism's Washington bureau and former editor of the Des Moines Register, says that confidential sources are used much too frequently. "If there's any silver lining to this awful Libby trial morass" ï¿½ a trial that spotlighted journalists' cozy relationships with government sources ï¿½ maybe "at least we'll become more aware of the cost, and we may rein in the use of anonymous sources and really limit them to the essential."
And not allow sources to abuse confidentiality either. The Sun's Fred Schulte sees a difference in the way sources interacted with reporters in Florida, where he worked for the South Florida Sun-Sentinel, and what happens in Maryland, with its just-outside-the-Beltway mentality. He rarely heard, "Well, this is off the record," in the Sunshine State. But, now, "I look at my notebook, and all I've got is 'on,' 'off,' 'on,' 'off,'" he says. "It's making my head spin... And that's what it is; it's spin. It's too many people manipulating these reporters."
Whether there's a distinction, as Pearlstine says, between "anonymous" and "confidential"--and most journalists and media critics use the terms interchangeably--there is a distinction made by many in the levels of confidentiality they'll grant. Some agreements involve complete protection; others are simply a question of attribution. But if there are some sources who are worth protecting through a Supreme Court case and others who are worth fewer litigation dollars, what does the promise journalists make actually mean?
"I think the difficult situation that reporters face is that the law as it exists today does not provide the kind of absolute protection for sources that reporters traditionally thought they had the right to offer," says Kevin T. Baine, a partner at the D.C. firm Williams & Connolly who has represented the Washington Post.
While the Supreme Court's 1972 ruling in Branzburg vs. Hayes rejected the notion of a journalist's privilege, Justice Lewis F. Powell wrote in an influential concurring opinion that journalists are not "without constitutional rights with respect to the gathering of news or in safeguarding their sources." Powell said there should be a "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."
That's the glimmer of protection to which press lawyers have clung. Although journalists lost in Branzburg, rulings over the next 30 years tended to support them. Then, in 2003, Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals upheld an order for journalists to turn over tapes of interviews with an FBI informant to a man facing terrorism charges in Ireland. Posner wrote: "We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist." This was the harbinger of a dramatic climate change.
Posner essentially said, "'I just reread that Branzburg case... You're crazy; [a reporter's privilege] is not there,'" says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. Since then, other federal judges have followed Posner's lead.
The BALCO case was seen as perhaps the last hope--it was before the last federal district court in which there had not been a ruling against the press. But that court went the way of Posner as well. Add to those cases setbacks in the Taricani and Plame proceedings, and a feeling of relative tranquillity over confidentiality has been chipped away.
Now, Baine says, reporters must ask: "What kind of promise can they make? What kind of promise should they make? Should reporters be offering anything more than the promise that they will not use the source's name in their report?"
"You don't need to have an elaborate discussion," he says. "If you're promising 'I won't use your name in my story,' that's all you say." In the past, there was an assumption that if a reporter was granting anonymity, that meant the reporter would go to jail to protect the identity of the source as well.
Long before the new world of Mirandizing, Jim Taricani was laying out exactly what level of protection he and his sources were talking about. If someone says, "I don't want to be quoted," Taricani makes it clear that he won't reveal his or her name but says this isn't a matter he'll go to prison to keep secret. If the source is talking about a deeper level of confidentiality, they'll discuss it. Usually, he says, the source is not.
These are the types of conversations media lawyer would like to see happen more often. "Journalism as a profession needs to take a good hard look at the issues of source confidentiality and..try to get some sense of shared values with respect to issues like when should a promise of confidentiality be made in the first place, are there ever conditions and, if so, what are they when a promise is no longer binding and shouldn't be binding," says Lee Levine, a First Amendment attorney who represented two reporters who refused to identify confidential sources in nuclear scientist Wen Ho Lee's suit against a number of news organizations. "There is no consensus right now in the profession on that point."
But it's hard to imagine industry-wide consensus, particularly on the question of when a promise is no longer binding. Opinions on whether reporters can accept waivers differ widely, and who is a protection-worthy source is a debate worthy of morality class. As Levine says, "One man's whistleblower is another man's scandalmonger."
If a source has a sleazy motive, can that person be identified, or should the source's information even be used? That's exactly the ethical quandary raised by the BALCO case. While Williams and Fainaru-Wada have not identified their source, Troy Ellerman, an attorney for two BALCO defendants, said he leaked grand jury testimony to the journalists in an effort to force a mistrial because of pretrial publicity. The Chronicle reporters have been criticized for using the information and printing quotes from Ellerman in which he complained about the leak.
Williams won't talk specifically about sources in the case, but he will discuss the issue generally. "Do you want the information, or don't you?" he asks. "Mark and I would've been delighted to go down to the courthouse and pull the public file and write the true story" of the BALCO drug investigation. "But you couldn't do that." The government took the athletes' names out of the court records. "You can't to this day find out the role these elite athletes played in this case." When the government won't give reporters that information, he says, you have to deal with sources.
Bronstein also won't talk specifically about the case, but says: "You should always try to suss out what motives compel sources... The question is, are they providing information that you can corroborate, and you make a decision on what to do with the information, separate from the motives of the sources."
This case, he says, "involved information that could be corroborated. So, then, do you want the material, or do you not want the material?"
Critics said the reporters were complicit in an unsavory action. Los Angeles Times media writer Tim Rutten was particularly damning: "To assert any form of journalistic privilege in a situation like that is something far worse than moral obtuseness," he wrote in a February 17 column. "Conspiring with somebody you know is actively perverting the administration of justice to your mutual advantage is a betrayal of the public interest whose protection is the only basis on which journalistic privilege of any sort has a right to assert itself."
But many lawyers don't see a reason to agonize over who's morally worth protecting and who's not. "For me, ultimately, who the source is or what the source's motive is is really irrelevant to the situation," says Jane Kirtley. As a lawyer, "my client can be an ax murderer, and it doesn't matter, the privilege still attaches."
Legally, there's precedent that a confidentiality agreement with a source is binding, no matter the source's less-than-noble motives. In 1991, in Cohen vs. Cowles Media, the Supreme Court ruled in favor of a Republican campaign operative, Dan Cohen, who gave the St. Paul Pioneer Press and Minneapolis' Star Tribune arrest records of an opposition candidate. Although he had been promised anonymity, both papers named Cohen as the source, and he lost his job as a result. Cohen recouped damages for breach of contract.
The flurry of legal setbacks has bolstered support among journalists for a federal shield law--and turned the BALCO Boys into congressional lobbyists.
"If we don't get a shield law, it will eventually shut down sources," says Williams, who, at the request of Hearst's Burton, has twice met with lawmakers in Washington to talk about the need for such legislation. "This isn't just for the barnburner, page-one scoop. You need to be able to talk to people about who was at the council's closed-door session when they discussed the contract... If we lose that because the government wants to make us into investigators, we're really going to hurt our newsgathering ability big-time."
Williams and Fainaru-Wada were spared a prison sentence in February after Ellerman admitted to being a source, and lawmakers on Capitol Hill petitioned Attorney General Alberto Gonzales to withdraw the subpoenas.
Media lawyers see growing support for protecting journalists, including at the state level. Thirty-two states and the District of Columbia have shield laws. Sandra Baron at the Media Law Resource Center ticks off seven states where shield laws have been introduced in the last year: Texas, Washington, Connecticut, Missouri, Kansas, Massachusetts, West Virginia. The Utah Supreme Court is considering adopting a rule embracing the privilege.
"It's enormously significant," Baron says of these actions. "This is probably as much if not more activity on this front as any of us has seen in the last decade or more."
At the federal level, a shield law was introduced in May in both houses of Congress, sponsored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) and Sens. Richard Lugar (R-Ind.) and Christopher Dodd (D-Conn.). The bills say that federal criminal and civil courts can compel a reporter to testify only if prosecutors have exhausted all reasonable efforts to get the information through other means and it's essential to the case, with exceptions for cases involving national security, imminent bodily harm or the leaking of trade secrets or certain medical and financial information. Courts must adhere to a balancing test that allows for compelled disclosure of information if the benefit to the public interest outweighs the public interest in newsgathering and the free flow of information.
Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America, has been spearheading his organization's aggressive lobbying efforts for a federal shield law on behalf of publishers and a coalition of more than 40 organizations. "Will it cross the finish line and be signed by the president?" he asks. "That's still uncertain."
The bill codifies the Department of Justice guidelines long adhered to since they were written during the Nixon administration--but, say Kirtley and other press lawyers, not followed by Attorney General Gonzales.
Justice disagrees with that characterization. "The Justice Department under Attorney General Gonzales has continued to adhere to the strict guidelines governing the issuance of media subpoenas and does so to this day," department spokesman Erik Ablin wrote in an e-mail to AJR. "Moreover, the number of cases in which media source subpoenas have been approved has actually decreased in recent years... From 2001ï¿½2006, they were approved in just four cases, compared to 12 cases for 1993ï¿½2000."
A 2001 letter from the department to Sen. Charles Grassley (R-Iowa) indicated that many more subpoenas that didn't seek a reporter's source had been approved. The letter said the Justice Department had approved 88 media subpoenas from 1991 to 2001. These subpoenas sought such things as notes and videotapes, telephone records and testimony about published materials.
A federal statute would change the guidelines from something the federal courts can choose to abide by to something they are required to follow. The current guidelines also don't apply to independent counsels like Patrick Fitzgerald, the prosecutor in the Plame case (and subpoenas in that case are not included in the Justice Department's count), but the law would.
Boyle says it's hard to say what effect a shield law would have had in recent cases, but a law would establish "the rules of the road" that prosecutors and civil litigants would look to before issuing subpoenas. "The whole point," he says, is "to make sure reporters are the last port of call rather than the first."
Robertson wrote about the Examiner newspapers in the magazine's April/May issue.
Correction: In this story, AJR said that the San Francisco Chronicle reporters who covered the BALCO case had been criticized for printing statements by the attorney -- who later said he was their source --complaining about grand jury leaks. The Chronicle did not print such statements by the attorney. ###