First Amendment and open government news

Vol. 14, No. 36, October 28, 2004

Subpoenas for reporters' confidential sources: An old threat, but far more grave this time. Solutions include a federal shield law or enabling reporters to "take the Fifth"

By Peter Scheer

(CFAC 10/28/04) -- It's hard to overstate the gravity of the threat to the press posed by the recent flurry of subpoenas commanding reporters to testify about their confidential sources. Although news organizations are justly criticized for excessive use of "anonymous sources," some of the most important kinds of news reporting will dry up completely if journalists are unable to protect the confidentiality of their unnamed sources.

Such as: Any serious reporting about national security matters, or about high-level political corruption, or about organized crime. Reporting in these crucial areas would be all but impossible if journalists' sources feared they were at risk of being ID'd. We're talking about the Washington Post's coverage of Watergate, nearly every article ever written by reporters Seymour Hersh and Bob Woodward, and all the best reporting about the Mafia or the Latin American drug cartels.

Is society really willing to pay that high a price in order to compel reporters to testify against government leakers? I don't think so. Even political conservatives would be loath to give up the media's role, through investigative reporting in these areas, as a check on abuses of executive power. Moreover, that calculus holds true even if you subscribe to the view -- more plausible than journalists would like to think -- that the First Amendment confers no special privilege on reporters to withhold evidence.

The threat of subpoenas and contempt judgments against reporters is all the more serious because, contrary to conventional wisdom, these initiatives do not stem from Justice Department or administration policy. The Plame investigation into the source(s) for columnist Robert Novak's outing of a CIA operative is being conducted, not by Justice Department prosecutors or a US Attorney, but by a "Special Counsel": Patrick J. Fitzgerald. A special counsel is required by law to pursue Novak's unnamed source with a zeal and single-mindedness that would be highly unusual in a regular prosecutor.
Think Ken Starr. (Read the rest of this column)

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