BY BRYAN E. DENHAM
In 1972, the United States Supreme Court held in Branzburg v. Hayes (408 U.S. 665) that working journalists can be required to testify in federal court regarding illegal activities about which they may have information, even when the journalists have promised their news sources confidentiality.
In 1972, the United States Supreme Court held in Branzburg v. Hayes (408 U.S. 665) that working journalists can be required to testify in federal court regarding illegal activities about which they may have information, even when the journalists have promised their news sources confidentiality. Accordingly, in the federal courts, journalists who refuse to disclose the identity of a source, when called upon to do so, may be jailed for obstructing justice.
New York Times reporter Judith Miller recently learned this lesson, spending 12 weeks in jail for refusing to disclose I. Lewis "Scooter" Libby as a source for stories involving the identification of a covert employee of the CIA (Lewis & Shane, 2007). Although the underlying story-a White House effort to discredit the writer of an op-ed piece challenging one of the major justifications for President Bush's war in Iraq and Libby's conviction on perjury and obstruction of justice charges-is of high public importance (Toobin 2007), and the sudden end of the CIA employee's (Valerie Plame's) career may well lead to new legislation, much of the public and some journalists would be hard-pressed to explain why Miller wound up in jail for the principle of "journalistic confidentiality," given that she did not actually write stories based on the Libby information.
Miller's is not the only case of federal courts insisting on the identification of reporters' sources, and using threat of prison to compel reporters to supply such information. In recent months, two reporters with the San Francisco Chronicle, Lance Williams and Mark Fainaru-Wada, faced 18 months in jail for refusing to disclose the identity of a source who leaked them grand jury testimony in the federal investigation of Bay Area Laboratories Co-operative (BALCO), suspected supplier of anabolic steroids to professional athletes (Murray & Mitchell, 2006; Silverstein, 2006; Soja, 2006). Troy Ellerman, an attorney who represented BALCO officials (Associated Press, 2007), had allowed Williams and Fainaru-Wada to review grand-jury transcripts in 2004, as the Chronicle reporters investigated alleged steroid use by athletes associated with BALCO. For his part in the leak, Ellerman recently struck a deal with prosecutors to spend no more than two years in prison and pay a fine not to exceed $250,000; as part of that arrangement, Williams and Fainaru-Wada would not serve time.
Cases such as these have led to the introduction of a number of bills in the U. S. House and Senate to establish a federal "shield law" for reporters (Lystad, 2005). None have passed, even though 31 states and the District of Columbia have shield laws in place that protect journalists and their sources and do not seem to have had any serious negative effect on the course of justice (Knox, 2005).
But would federal protection assist journalists-or would it make their jobs even more difficult?
In the case of "Scooter" Libby, a federal shield law might have afforded Judith Miller a modicum of cover-but the Intelligence Identities Protection Act or some sort of exemption for matters of "national security" might have been triggered, which probably would have trumped any federal shield law. (See Murray & Mitchell, 2006). The varying effectiveness of the federal Freedom of Information Act, depending as it does on the support given it by the administration in office, probably offers some insight into how strong a federal shield law would be in practice.
Additionally, Carr (2006) has written of a political climate in which journalists are not viewed as heroes, but as villains, pointing out that increased protection for journalists under a federal law might perpetuate greater contempt for the press.1 As an example, when Miller testified on January 31, 2007 in the Libby trial, an Associated Press report headlined it: "Journalists Under Fire in CIA Leak Case" (Apuzzo, 2007). As commentator Michael Kinsley observed in a subsequent issue of Time (February 12, 2007), while leaks may assist in keeping government honest (or as close to honest as other factors allow), the Valerie Plame situation essentially led journalists to participate in a political retaliation, doing the "dirty work" of White House officials who sought to smear her husband.
Indeed, while there can be little argument that journalists and their publics benefit from receiving information supplied by anonymous sources, in some cases the anonymous sources benefit even more. From an ethical standpoint, some sources routinely float politically charged, self-serving trial balloons when granted anonymity, and on a more destructive level, they sometimes attack or retaliate against political foes. If one accepts an argument made by journalism scholar Michael Schudson (2003)-namely, that much of the information in major national newspapers is essentially code-speak among political and economic elites-then broader protection for confidential sources is not necessarily in the best interest of all parties. Given the continued consolidation of media companies into multi-national conglomerates, many journalists already operate as elites in the societies they cover, and given the existing symbiosis between journalists and public officials, the potential for self-serving manipulation on the part of news sources would seem apparent.
Columnist Paul Krugman (2007) of The New York Times as well as reporter Mark Thompson (2007) of Time magazine recently discussed an unusual press conference held by U. S. military officials in Baghdad. On February 11, 2007, with cameras, recorders and cell phones barred from the session, three anonymous U. S. officials described for reporters how Iran had allegedly been supporting Iraq by providing explosively formed penetrators (EFPs) to assist in killing American troops. As Krugman and Thompson observed in their columns, the allegations against Iran and its alleged assistance to Iraq bore a striking resemblance to statements about the presence of weapons of mass destruction in Iraq in 2003. An anonymous official had even provided the New York Times with information in advance of the press conference, leading observers to express concern that military officials were providing political assistance to the White House as it moved toward mobilizing popular support for attacking Iran. As Krugman asked the day following the February 11 "technology free" press conference, "Why wasn't any official willing to take personal responsibility for the reliability of alleged evidence of Iran mischief, as opposed to being an anonymous source? If the evidence is solid enough to bear close scrutiny, why were all cameras and recording devices, including cell phones, banned from yesterday's Baghdad briefing?" (p. 21). Krugman thus drew attention to the fact that some of his colleagues could have served as pawns for military officials.
Although the BALCO case did not involve matters of national security, it, too, offers insights on the politics of a federal shield law. Praising San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada, the Washington Post contended in September 2006 that "The public service they did by exposing steroid use among top athletes was significant," and in the Chicago Sun-Times, veteran sportswriter Rick Telander (2007) advocated a federal shield law in pointing out that "The two men who alerted the world to the steroid sham that major-league baseball had become are still looking at a year and a half in prison" (p. A87).2
Aside from the fact that Williams and Fainaru-Wada did not "alert" the world to problems with performance-enhancing drug use in Major League Baseball--the late player Ken Caminiti and Sports Illustrated did so in 2002 (Denham, 2004)-the Chronicle reporters may have contributed to eroding public trust in American journalism. 3
(Unlike Miller, and thanks to a plea agreement with Ellerman, the confidential source from who Williams and Fainaru-Wada secured much of their information, the two reporters no longer face prison time-unlike their source).4
When Ellerman is formally sentenced (probably in June of 2007), U. S. District Judge Jeffrey White can choose to ignore the plea (a maximum of two years in prison and a fine not to exceed $250,000) and sentence Ellerman to as many as 15 years behind bars. While such a move is unlikely, the professional ruin and probable disbarment of Ellerman appears at one end of the spectrum, while the professional successes of Williams and Fainaru-Wada appear at the other. Those who view the journalists less as champions of the First Amendment and more as opportunists who showed little regard for the fundamentals of grand-jury proceedings may spend little time celebrating the fact that Williams and Fainaru-Wada will not serve time; instead, they may envision the reporters strolling past Ellerman, copies of their book in tow, scoffing "See ya, wouldn't want to be ya." 5
At a time when public officials with questionable motives have manipulated journalists at prominent newspapers, is greater protection of confidentiality, endorsed by a federal shield law, a step in the right direction? Or is a federal shield law an invitation for even greater problems for journalists who recently have appeared to shine a light less on government than on themselves and their nobility as watchdogs?
Apuzzo, M. (2007, January 31). "Journalists under fire in CIA leak case." Associated Press.
Associated Press (2007, February 16). "Attorney guilty of BALCO testimony leak." New York Times.
Carr, D. (2006, November 27). "Subpoenas and the press." New York Times, p. C1.
Denham, B. (2004). "Sports Illustrated, the mainstream press, and the enactment of drug policy in Major League Baseball: A study in agenda building theory." Journalism: Theory, Practice and Criticism, 5(1), 51-68.
Fainaru-Wada, M. & Williams, L. (2006). Game of shadows: Barry Bonds, BALCO and the steroids scandal that rocked professional sports. New York: Gotham.
Kinsley, M. (2007, February 12). "Free Scooter Libby." Time, p. 45.
Knox, Leila Wombacher (2005). "The reporter's privilege: The necessity of a federal shield law 30 years after Branzburg." Hastings Communications & Entertainment Law Journal, 28(1), 125-144.
Krugman, P. (2007, February 12). "Scary movie 2." New York Times, p. 21.
Lee, William E. (2006). "The Priestly case: Reflections on a journalist's privilege." Cardozo Arts & Entertainment Law Journal, 23(3), 635-686.
Lewis, N. A., & Shane, S. (2007, January 31). "Reporter who was jailed testifies in the Libby case." New York Times.
Lystad, Robert D. (2005). "Anatomy of a federal shield law: The legislative and lobbying process." Communications Lawyer, 23(2), 3-14.
"More journalists facing jail; time to pass a federal shield law." (2006, September 24). Washington Post, p. B6.
Murray, Casey & Mitchell, Kirsten B. (2006). "Would a shield law matter?" The News Media & the Law, 30(3), 4-9.
Schudson, M. (2003). The sociology of news. New York: W. W. Norton.
Silverstein, S. (2006, September 22). "Two reporters sentenced for refusing to reveal sources in steroids case." Los Angeles Times, p. B3.
Soja, Elizabeth (2006). "Two out? Decision on deck."The News Media & the Law, 30(4), 16.
Telander, R. (2007, January 7). "Chronicle crusaders are true pros, not cons." Chicago Sun-Times, p. A87.
Thompson, M. (2007, February 26). "How to shape a charge." Time, p. 12.
Toobin, J. (2007, March 19). "Comment: Verdicts." The New Yorker, pp. 59-60.
1Ironically, Lee (2006) observed that some journalists view a federal shield law as indicative of increased government control of the press.
2Telander also alleged that "Already, investigative reporters in many newsrooms are being told to destroy their notes and avoid e-mail messages so their work doesn't end up in the hands of government" (p. A87).
3 Soja (2006) also reviewed the chronology of the BALCO investigation, noting that it began in 2003. San Francisco Chronicle articles containing information from grand jury testimony appeared in 2004.
4 The plea must receive final approval in a U. S. District Court.
5 Regarding the importance of grand-jury secrecy, J. Mozingo wrote in the Los Angeles Times on November 14, 2006, that "Grand jury sessions are held in secret for several reasons: to protect jurors and witnesses from intimidation, to avoid tipping off suspects who could flee, to encourage witnesses to be forthcoming and truthful, and to avoid stigmatizing those who've been investigated but not charged (p A1)." Silverstein (2006) noted that prosecutors may have difficulty securing volatile information should leaks from grand-jury proceedings become common.
The above article was published in Media Ethics, Spring 2007 (18:2), pp.8,28-29.