Philadelphia Inquirer (opinion) — Reporter shield serves us all

More and more, journalists are punished for protecting sources. The trend could deprive the public of information it needs to hear.

The Philadelphia Inquirer
Posted March 20, 2008

Robert C. Clothier is a First Amendment and media law attorney

More and more, journalists are punished for protecting sources. The trend could deprive the public of information it needs to hear.

The Philadelphia Inquirer
Posted March 20, 2008

Robert C. Clothier is a First Amendment and media law attorney

More and more reporters are getting subpoenaed by prosecutors and litigants, fined and even jailed for refusing to disclose their confidential sources. This is a troubling trend that has broad implications for everyone.

Judith Miller, formerly of the New York Times, spent 85 days in jail for refusing to testify before a grand jury investigating a leak that named Valerie Plame as a covert CIA agent.

Just recently a federal judge ordered a former USA Today reporter to pay up to $5,000 a day until her next court appearance, and prohibited her former employer from reimbursing her, because she refused to reveal her sources in a case brought by Steven Hatfill against the government. This is a civil case that does not implicate national security. An appeals court recently stayed the judge's fine.

Things have gotten so bad that the media must fork over cash to protect confidential sources. Even though they were not parties to the case, the New York Times and four other media organizations agreed in 2006 to pay $750,000 to Wen Ho Lee to end contempt citations against reporters who refused to disclose their confidential sources.

Reporters are becoming pawns of prosecutors and litigants, with little defense. The already modest protections afforded by the so-called reporter's privilege are weakening, if not disappearing, in some situations and jurisdictions.

The media aren't always a sympathetic lot, but the consequences are serious and have broad implications. Valuable sources of information will dry up if they fear being outed in court. News organizations and reporters may become hesitant to pursue stories that might prompt a subpoena.

Should citizens care? You betcha.

But some citizens believe that journalists don't deserve any "special" protections not given the rest of us. This perception misses the point. The reporter's privilege is designed to serve the public by facilitating the flow of important information to reporters and the public. Far from serving a narrow interest, this privilege is a constitutionally rooted protection that benefits every citizen and strengthens our democracy.

Think Watergate. Without "Deep Throat" - the confidential source of Woodward and Bernstein - Watergate would remain just a large hotel in Washington, not the symbol of a scandal that brought down a presidency.

Concerned about our Iraq war veterans? The poor conditions at the Walter Reed Army Medical Center in Washington were exposed with the help of confidential sources. Are you a sports fan? Without information provided by confidential sources, you may never have learned about a world-record sprinter's use of performance-enhancing drugs or about alleged steroid use in Major League Baseball. Enjoy business coverage? Confidential sources helped groundbreaking stories involving the Enron scandal.

Most reporters understand that with special protections come special responsibilities. Reporters try to use confidential sources sparingly and only where the information provided is newsworthy and comes from a reliable source, not idle gossip of uncertain accuracy. Reporters strongly encourage sources to speak on the record. But sometimes that's just impossible.

Pennsylvania has a strong statutory privilege that absolutely protects all confidential-source information. But it is inapplicable when federal courts adjudicate federal law claims - a big loophole.

Federal and state courts in Pennsylvania and around the nation, however, have upheld a qualified First Amendment privilege that places a significant but not impossible burden on the party seeking a reporter's testimony and documents.

It is that First Amendment privilege that is now under attack. In response, Congress is considering a new federal shield law. The House voted overwhelmingly to approve a shield law (H.R. 2102), but the Senate has yet to act on a similar bill (S. 2035) reported out of the Senate Judiciary Committee in October.

Sen. Arlen Specter (R., Pa.) and others recently urged the Senate leadership to send the bill to the floor for a vote. A federal shield law would ensure a uniform standard protecting reporters, while honoring the public interest in having reporters testify in situations involving terrorism and national security concerns. That's a reasonable compromise.

It's time for Congress to act. Subpoenas on reporters are proliferating, and all of us stand to suffer. Congress should pass a federal shield law that provides sufficient protections for reporters - and for us.