Reporters Face Jail, Fines, Dates in Court

By: Joe Strupp OK, people! Let's be calm. We have a little problem. Actually, it's a big problem. But we can handle it. Can't we?

That seems to be the collective discussion/uncertainty among newspaper industry leaders over what to do about the unprecedented string of subpoenas and other federal inquiries into confidential sources during the past several months. From Washington, D.C., to San Francisco, the attack on the coveted reporter's privilege is reaching unprecedented heights.

"It has changed with a velocity that would make your head spin faster than Linda Blair in The Exorcist," exclaimed Bruce Sanford, a noted media attorney who spoke during a panel on First Amendment issues at the Society of Professional Journalists convention in September. Adds Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, "It is the worst it has ever been."

But while news outlets scramble to counter the recent wave with appeals and motions to quash, the broader question of how to stem this tide of pressure on the press before it kills anonymous sourcing completely is not easily answered. Some want a federal shield law, while others claim a U.S. Supreme Court ruling is the answer. Still others push for the industry to police itself more strictly on anonymous sourcing.

"We need to persuade people that without reporters' privilege, sources, and whistleblowers who are critical of government who need anonymity to do their jobs will not be heard from," argues George Freeman, an attorney with The New York Times, which has received several subpoenas for reporter testimony and records in the last few months. "This justice department is certainly not respectful of, or an ally of, the media."

Right now, three ongoing federal cases have sought information from journalists about confidential sources, with all three making specific requests since early August.

The most prominent is the special prosecutor probe into who leaked the identity of CIA officer Valerie Plame, which has sparked subpoenas for testimony from Tim Russert of NBC, Matthew Cooper of Time magazine, Walter Pincus of The Washington Post, and Judith Miller of The New York Times.

Pincus, who gave a deposition on this matter on Sept. 15, also is among six reporters ? including two New York Times staffers ? ordered to reveal sources in the Wen Ho Lee case, a privacy rights lawsuit brought by Lee, a former Los Alamos scientist, against the federal government. A federal judge in August found five of the reporters, but not Pincus, in contempt of court and ordered them to pay a $500-per-day fine, but stayed the fine pending appeal. (Pincus faces the same contempt charge in an upcoming hearing.)

Finally, the BALCO investigation, in which federal officials are looking into the possible illegal distribution of steroids by a Bay Area business owner, has prompted the U.S. Attorney in San Francisco to seek confidential sources and records from three San Francisco Chronicle reporters and two from the San Jose Mercury News. At least two other cases, involving non-daily newspaper reporters in Minnesota and Rhode Island, have prompted fines, with the Rhode Island case still ongoing.

"It is more than a blip," says Freeman, who stresses that the recent actions constitute a definite change in the federal approach. "There clearly is a sense that the courts seem to be giving less respect for reporter privilege than they did a decade ago." So what to do about it?

One option is to push for a federal shield law. Although 31 states and the District of Columbia have shield laws that protect reporters from having to reveal sources, no federal law exists. "That certainly would solve the problem," says Stephanie Abrutyn, a Tribune Co. attorney who works mostly with Newsday of Melville, N.Y.

Floyd Abrams, who is handling cases for Time and the New York Times, agrees. "I think it would deal with most of the problem," he says. "We have had too many instances of prosecutorial overreaction."

But no organized effort by the press to seek a federal law has been launched. Worries remain that, if given the chance, Congress might pass a law that makes things more restrictive. "You never know what it is they will pass," says Leonard Downie Jr., executive editor of The Washington Post. "Legislation is always tricky." Adds Freeman: "I'm not sure if it would be helpful or harmful."

Another option is taking the issue to the U.S. Supreme Court, which has not specifically addressed the confidential sources question since the 1972 Branzburg vs. Hayes decision. But even in that case, the court ruling was murky. It found that reporters may not protect confidential sources in grand jury cases, but may only be required to reveal them if they are "of central importance" to the case and cannot be found elsewhere. Some attorneys argue that much of the information sought in the current controversial cases, especially the Plame probe, may very well be found through other sources.

Still, the Supreme Court ? especially as it is currently constituted with a conservative leaning ? may also weaken press power, some fear. "We don't want court decisions; they set precedents we don't want," Downie says. Adds Eve Burton, an attorney with Hearst Newspapers: "I'm not sure I want to go to the Supreme Court."

Some industry leaders contend a counterattack can be made without new laws or court decisions. Limiting the use of anonymous sources, which several recent policy changes at the Post and the New York Times have already directed, is one way. "Journalists have probably been overusing anonymous sources," Dalglish says. "You shouldn't be out there just randomly making promises of confidentiality." Abrutyn believes reporters should be warned not to grant confidentiality so quickly: "Think long and hard whether it is worth the price."

Others advocate a unified media voice against these federal efforts. "It would be desirable if individual newspapers spoke out more than they are," contends Abrams. "This is not just a problem of newspapers that have been subpoenaed."

But so far the only organized effort is an online petition by the Reporters Committee, asking journalists to sign in support of reporters involved in the current cases. Although the group has nearly 3,000 signatures, the petition may only succeed in getting reporters on the record supporting an obvious cause, not making any substantial changes. Says Dalglish, "It has been tough to get journalists together on this."