Protecting the press
A Times EditorialPublished January 17, 2005
Congress should pass a federal shield law to safeguard journalists'
ability to keep their sources confidential.
When 60 Minutes star Mike Wallace grilled former HealthSouth CEO Richard Scrushy for a hard-hitting story, he had no idea Scrushy might attempt to turn the tables. But the executive has asked a U.S. district judge to force Wallace and his producer to testify during his trial on a 58-count indictment, possibly to refute the prosecution's playing of the original story for a jury.
This is the nightmare scenario that journalists are facing more often, as increasing numbers of prosecutors and attorneys ask courts to force reporters, under threat of going to jail, to talk about their confidential conversations with news sources.
In 31 states, including Florida, such requests are automatically voided by "shield laws" which hold that the journalist's ability to keep confidences is vital to securing press freedoms guaranteed in the First Amendment. Outside special circumstances - say, witnessing a crime firsthand - such laws usually keep lawyers from hauling reporters into open court, reasoning that few sources will trust journalists if they cannot guarantee their conversations will remain secret.
But there is no shield law at the federal level. And Scrushy is only the latest in a long line of people who have subpoenaed journalists to reveal their confidences in federal court - where judges are increasingly inclined to support them.
Former Army scientist Steven J. Hatfill, named a "person of interest" in the government's investigation of an anthrax-laden letter in 2001, has subpoenaed news outlets such as National Public Radio and the Washington Post to determine who leaked his name to reporters as part of a court-approved plan.
In August, a federal judge found reporters from four news organizations in contempt for refusing to reveal sources for stories about the investigation of nuclear scientist Wen Ho Lee. On Dec. 9, another federal judge sentenced Rhode Island TV reporter Jim Taricani to six months' house arrest for refusing to reveal who gave him an FBI tape of a local official taking a bribe - even after the source independently revealed his own identity.
Now a three-member panel of appellate judges is considering whether to uphold a contempt ruling against Time magazine reporter Matthew Cooper and New York Times reporter Judith Miller. The reporters risk up to 18 months in prison for refusing to disclose who leaked to them the name of covert CIA operative Valerie Plame. (Still unanswered: why columnist Robert Novak, who first published her name in a story, isn't facing similar sanctions.)
Given the hostile climate, it is time for Congress to consider a carefully crafted federal shield law that protects journalists from disclosing sources (including material such as unpublished notes and photographs), regardless of whether the sources have been promised confidentiality.
Some have suggested a law with no exceptions, but we would support legislation that does not shield journalists who have directly witnessed a crime - provided there is language forcing courts to prove the information is essential to the case at hand and cannot be obtained any other way.
We realize that such laws, including the one recommended by U.S. Sen. Christopher Dodd, D-Conn., run the risk of limiting journalists' First Amendment freedoms by codifying them. Historically, reporters have relied on judges' interpretations of the First Amendment to protect them; to pass a federal shield law, advocates must guide legislation through a Republican-dominated Congress filled with lawmakers who already have criticized the use of unnamed sources in mainstream media.
And the biggest question may come over whom the law protects. In a democracy that preserves press freedoms by refusing to license journalists, a law in which Congress defines who is a journalist in the Internet age is a risky step. Some journalists fear a federal privilege may increase the already significant use of unnamed sources in stories; others fear any privilege Congress grants, it can also take away.
Too many journalists rely too heavily on unnamed sources, and readers are better served when they know the origin of information in news accounts. But important stories such as the Pentagon Papers and Watergate might never have reached the public if reporters later were forced to reveal their sources. Even today, many stories on the military, government intelligence and official wrongdoing would be impossible to report without the use of confidential sources.
To protect the news media's ability to serve as a watchdog and whistle-blower - and the public's right to know - Congress should pass a federal shield law safeguarding journalists' ability to keep sources confidential.