Since then, two federal courts have ruled against reporters who were seeking to protect the identities of confidential sources in cases where the information was of considerable public importance. These involved federal investigations of a former Providence, RI mayor, and of whether a crime was committed when a covert CIA operative's identity was leaked by a columnist. In both instances, the courts held that alleged needs of the investigations take precedence over the reporters' promises to confidential sources, even in the CIA case, where Miller didn't even write a story.
In early December 2004, a Providence television reporter was sentenced to six months of very restrictive home confinement (in deference to his major health problems) for refusing to reveal the source who illegally gave him an FBI videotape showing a city official taking a bribe.1 In an ironic twist, the special prosecutor in the case revealed the name of the source during the prior week, and said that the source had not requested confidentiality-a claim strongly disputed by the journalist.2
A mid-February 2005 ruling by a three-judge panel of the District of Columbia Circuit Court of Appeals, in the case stemming from the CIA officer's unmasking, held that "there is no First Amendment privilege protecting the information sought."3 The two reporters involved in this case face up to 18 months in jail on contempt charges, if this ruling stands and they eventually refuse to identify their source(s). Floyd Abrams, the lawyer for both reporters, said he would pursue further legal actions because "the ruling 'strikes a heavy blow against the public's right to be informed about its government.'"4 (The other side to this argument is that courts have the right to everyone's testimony, and that journalists are not above the law.)
The flat-out denial of any possibility of First Amendment protection in this case seems like a rather extreme position in view of the history of journalists' confidentiality cases in the courts since the 1972 Branzburg v. Hayes decision.5 To put an ethical slant on a legal decision, it could easily be argued that this holding goes against the grain of both a utilitarian and a "middle ground" (Aristotle or Confucius) approach to what's good for the society as a whole.
On a more positive note for journalists, a federal district judge in New York ruled at the end of February that both the First Amendment and common law protect reporters attempting to safeguard the identities of confidential sources by refusing to turn over telephone records to a federal prosecutor. Although this case is completely separate from the one involving the CIA officer's identity, one of the reporters and the federal prosecutor are involved in both cases. In the phone records case, lawyers for The New York Times argued successfully that the government failed to prove it had exhausted all other means of identifying who might have leaked information about two Muslim charities alleged to have ties to terrorists, and therefore had not demonstrated that its interests outweighed those of the press and, ultimately, of the public that is informed by the press.6
These two court denials of First Amendment protection for journalists' privilege are clearly not good news either for the news media or for the public which depends on the media to provide the information needed for informed self-government. These and other recent cases have already spawned renewed efforts to pass a federal "shield" statute which might protect journalistic confidences, at least in federal court cases. Unfortunately, some of these proposals are in conflict with one another in their details. The salient proposal, sponsored by Sen. Chris Dodd (D-CT), follows the formula set forth by Justice Potter Stewart in his dissent in Branzburg. It would provide an absolute privilege against compelled disclosure of all sources (confidential or not) and a qualified privilege for other information which "could be overcome if a court finds that the subpoenaed information is 'critical and necessary to the resolution of a significant legal issue,' the information could not be obtained by 'any alternative means,' and 'there is an overriding public interest in the disclosure.'"7
Support for a federal shield statute has already come from the media: The New York Times and Editor & Publisher, among others. The Radio-Television News Directors Association's president, Barbara Cochran, said in the wake of the CIA-related investigation ruling that "protecting a reporter's right to confidential sources is essential to preserving the public's right to know and to hold government accountable for [its] actions.... It would be devastating if reporters have to choose between going to jail and breaking a promise to a source."8
This is far from the first attempt to legislate such protection. Efforts at the federal level go back unsuccessfully to 1929, and state shield laws date back to 1896 and now exist in some 31 states and the District of Columbia. But such laws have not always provided the protection they seem to have promised, and some critics have argued that, on balance, the legislative approach creates more problems than it solves. For example, at least four reporters have gone to jail in New Jersey over the years, despite the existence of one of the older state shield statutes. And, as various people have argued over the years, the statutory approach is also unreliable because what the legislature giveth, the legislature can also taketh away.9
At least one of the proposed federal shield laws10 would write into statute current Justice Department guidelines, in place since 1973, that specify the conditions which the government must meet before issuing subpoenas to journalists. These guidelines apparently were helpful in cutting down on a huge outbreak of subpoenas when they were first issued, but they obviously have not prevented the burgeoning number of demands for confidential sources in recent months.
Although a federal shield law might be useful to stem the recent rash of demands for confidential sources, it is not going to solve the problem by itself. Proponents of protecting confidentiality need to keep fighting for expanded First Amendment protection, as well as working, as I suggested last fall, to create a climate where reporters will think carefully about the need to rely on confidential sources and prosecutors and other lawyers will consider carefully whether the forced disclosure of such sources really serves the public interest in all-or even most-cases.
And it will help everyone keep focused on the central issues involved if the media can avoid misusing confidential sources, as seems to have been the case in CBS' 60 Minutes fiasco regarding President Bush's service in the Texas Air National Guard during the Vietnam war.
At a minimum, the media must avoid the temptation to use confidential sources just because they offer an easier path than further investigations, and journalists need to be more skeptical than CBS was regarding all such sources who may have an axe to grind or who may otherwise be untrustworthy.
That's ethics, but it's also just plain good journalism.
* A. David Gordon is professor emeritus, Univ. of Wisconsin-Eau Claire, where he served as chair of the Dept. of Communications and Journalism. He has held teaching and administrative positions at Northwestern Univ., Univ. of Miami (FL), and Emerson Coll., in addition to five years as a reporter. He co-authored Controversies in Media Ethics.
1 Malinowski, W. Zachary, "Taricani won't appeal punishment," The Providence Journal, Dec. 22, 2004, retrieved Feb. 27, 2005 from http:// www.projo.com/trial/content/projo_20041222_jimt22.1428d4.html. The reporter was released from his home confinement sentence in early April, in keeping with the judge's comment at sentencing that he could be released two months early if he complied with all requirements of the sentence. Associated Press, "Judge Grants R.I. Reporter's Request for Early Release," Editor & Publisher, April 7, 2005, retrieved April 7, 2005, http://www.editorandpublisher. com/eandp/news/article_display.jsp?vnu_content_id=1000873478.
2 SPJ PressNotes for Dec. 2, 2004 (citing a story by Tracy Breton in The Providence Journal), http://www.spj.org/pressNotes .asp?ref=8727, retrieved Dec. 5, 2004.
3 Sherman, Mark, "Appeals court rules against two reporters in CIA leak case," The Philadelphia Inquirer, Feb. 16, 2005, p. A5.
5 408 U.S. 665.
6 Mintz, John, "Reporters' Phone Records Are Protected, Court Rules: U.S. Attorney Can't Force N.Y. Times to Supply Documents," The Washington Post, Feb. 25, 2005, p. A03, retrieved Feb. 26, 2005 from http://www. washingtonpost.com/wp-dyn/articles/A51840-2005Feb24.html?sub=AR. In March, the U.S. Supreme Court declined to review lower court decisions that protected two journalists from testifying about their coverage of an unsolved 1993 murder case. The ruling came in a civil suit brought by the parents and husband of the murdered woman, in which the trial court quashed subpoenas of the reporters, requested by the plaintiffs, which could have led to questions about confidential sources. Reporters Committee for Freedom of the Press, News Media Update, "Supreme Court declines review of reporter's privilege case," March 21, 2005, http://www.rcfp.org/news/ 2005/0321-con-suprem.html, retrieved April 7, 2005.
7 Reporters Committee for Freedom of the Press, News Media Update, "Confidentiality/ Privilege," Feb. 17, 2005, http://www.rcfp.org/news/2005/0217-con-second.html, retrieved Feb. 23, 2005.
9 See, among other sources, A. David Gordon, "Protection of News Sources: The History and Legal Status of the Newsman's Privilege," unpublished Ph.D. dissertation, University of Wisconsin, 1971.
10 Wisconsin Newspaper Association, The Bulletin, Feb. 16, 2005, p. 1.
The above article was published in Media Ethics , Spring 2005 (16:2), pp. 13,24-25.