Anonymous-source cases, shield laws vary

Journal Gazette | 07/10/2005 | Anonymous-source cases, shield laws vary: Anonymous-source cases, shield laws vary

By Anthony L. Fargo

Last Wednesday, New York Times reporter Judith Miller went to jail rather than reveal a confidential source. Unless she changes her mind, she is likely to see summer turn to fall from behind bars.

Last December, Jim Taricani, a Rhode Island TV reporter, was sentenced to six months of home confinement after he refused to tell a special prosecutor the name of his source. The source violated a gag order by giving Taricani a copy of an FBI surveillance tape showing a Providence city official accepting a bribe.

About a dozen other reporters and news organizations may face jail or heavy fines if they continue to refuse to identify sources who leaked information to them about espionage and terrorism investigations.

What in the name of Deep Throat is going on?

The answer lies in a 1972 U.S. Supreme Court opinion. In Branzburg v. Hayes, the Supreme Court ruled 5-4 that the First Amendment does not protect reporters from being forced to reveal their sources to grand juries. The court said reporters have the same duties as other citizens to report criminal activity. But a justice in the majority wrote a separate opinion limiting the decision to cases in which reporters had direct evidence of crimes.

When Branzburg was decided, reporters nationwide were getting a few dozen subpoenas a year. Periodic surveys of news organizations by the Reporters Committee for Freedom of the Press over the past 15 years suggests that number is now in the hundreds. (By the way, the Reporters Committee Web site is a great place to keep track of the pending subpoena cases. Go to www.rcfp.org and click on the link to “Shields and Subpoenas.”)

Many subpoenas to the press are routine demands for copies of published or broadcast stories. The media usually fight subpoenas only when they seek unpublished information, such as reporters’ notes, or the identities of confidential sources.

Whether journalists succeed in fending off subpoenas for notes or source names depends to a great extent on where they live, who wants the information, and what the information is.

In the 33 years since Branzburg, lower federal courts have split over how to interpret it. Many have determined that reporters have a privilege not to testify in civil or criminal trials under some conditions. Others have said the opposite. The courts also have split over the conditions under which reporters can be ordered to testify.

Meanwhile, legislatures in 31 states, including Indiana, have passed shield laws to provide varying degrees of protection to reporters. Courts in most states without shield laws also have protected reporters from having to reveal sources in some circumstances.

Although the protection for journalists is haphazard because of the conflicting state and federal laws and court decisions, the system has worked pretty well until recently. Why we suddenly have an epidemic of journalists facing jail time is unclear.

Why should you care?

The recent decision by former FBI official Mark Felt to reveal that he was “Deep Throat,” the famous Watergate source, reminds us that confidential sources often help the press do a tremendous public service by revealing government corruption.

Likewise, a New York City Bar Association committee recently noted, in a position paper supporting reporters’ right to protect sources, that many recent stories exposing public corruption and threats to public health and safety could not have been written without confidential sources.

When Miller unsuccessfully appealed her contempt citation to the Supreme Court, 34 state attorneys general filed a brief in her behalf. The state officials argued that more good came from reporters publishing what they learned from confidential sources than any harm done to law enforcement by not knowing the sources’ names.

Not all sources are Deep Throat, however. The Miller story has as many twists as a good mystery novel. One twist is that Miller is in jail for protecting a source who did not deserve protection. Miller was subpoenaed by a federal grand jury that is investigating whether one or more people in the Bush administration illegally revealed an undercover CIA operative’s name to reporters, apparently to settle a political score with the operative’s husband.

Another twist is that Miller never wrote a story about what her source told her. Columnist Robert Novak and Time magazine reporter Matthew Cooper did write about the CIA operative. Novak is not facing jail and apparently cooperated with authorities, although he has not confirmed that. Cooper joined Miller in challenging subpoenas to them and to his magazine. When all of their appeals failed, Time agreed to give federal authorities Cooper’s notes. Cooper agreed to cooperate with the investigation after his source reportedly released him from his confidentiality promise.

Despite all that, Miller had little choice but to defy authorities and keep her promise. If she had not, who knows what the press and public would have lost if sources with information of public concern believed they could not trust reporters?

So how do we protect reporters and keep news flowing?

One way would be a federal shield law. Sen. Richard Lugar and Rep. Mike Pence of Indiana have filed bills in Congress that would provide this protection. Their bills are identical. Sen. Christopher Dodd of Connecticut has introduced a separate bill that would do roughly the same thing.

Shield laws have their disadvantages. For one thing, they do not get the same respect from the courts as constitutionally protected rights and privileges. They also put the press in the awkward position of being beholden to people they cover. They also are subject to change depending upon the political whims of Congress.

But a federal shield law would have one big advantage – it would bring consistency and fairness to an area of law that is sorely in need of consistency and fairness.