The use of anonymous sources in investigative journalism has been a familiar practice to Americans ever since Bob Woodward and Carl Bernstein scooped the Watergate burglary with the help of an informant known only as Deep Throat. While the use of sources is often controversial, it is generally accepted that protecting the identity of those privy to sensitive information is permissible if it can help uncover fraud or wrongdoing that happens behind closed doors.
Recent instances of leaking and whistleblowing, however, have provoked the attention and umbrage of powerful prosecutors and judges. Yesterday, Federal District Judge Thomas Hogan held a hearing examining Special Prosecutor Patrick Fitzgerald’s (successful) efforts to have Judith Miller of the New York Times and Matthew Cooper of Time held in contempt of court for their refusal to name a source (Fitzgerald’s real target: the as-yet unknown leaker who informed columnist Robert Novak — illegally — that Valerie Plame was a CIA operative).
A federal judge has held five reporters in contempt for refusing to release information about their sources in their coverage of the case of Wen Ho Lee, the nuclear scientist who was at one point accused of spying. And just today, Rhode Island TV reporter Jim Taricani was sentenced to federal prison after being found in contempt for refusing to reveal his source for an undercover FBI videotape allegedly showing a Providence official taking a bribe.
Despite widespread public acceptance of unnamed sources, journalists do not have much protection from grand juries or federal prosecutors. The 1972 Supreme Court decision in the case of Branzburg vs. Hayes held that journalists do not enjoy a constitutional right not to testify even if it might force them to reveal sources. Although 31 states now have shield laws that allow journalists to withhold testimony that would compromise the anonymity of their sources, the lack of any federal protection places the journalist-source relationship at risk in many cases. Additionally, the level of protection afforded by the state laws varies, meaning that journalists are better protected in some states than others.
In response to these concerns, Sen. Christopher Dodd, D-Conn., has introduced the Freedom of Speech Protection Act, intended to provide a baseline level of protection for journalists’ source confidentiality at the federal level. In introducing the legislation, Dodd cited a democratic society’s need to have many different sources of information and commentary, and that protecting the freedom of the press helps to “ensure that the government remains open and accountable to its citizens.”
In principle, many people would agree, and many journalists, columnists, and reporters have come out in favor of the proposed law. In the wake of major media scandals such as the Jason Blair imbroglio at the Times, however, some commentators have expressed concern for sweeping protection of anonymous sourcing, citing fears of a reduction in journalist accountability.
And although leaking has been a prominent way of extracting jealously guarded information from the current administration, it is not inconceivable that total source anonymity would not be abused by politicians and policymakers in committing so-called “strategic leaks.” After all, a confidential informant who leaks classified information is still breaking the law, even if she is shielded from being exposed in court.
Such fears are unfounded, however. Dodd’s legislation allows for exceptions for protection in cases where the need for court access is compelling. And it should be remembered that the leaking of the Pentagon Papers, which was instrumental in exposing government misinformation and distortion about the Vietnam War, was an illegal release of classified documents.
Dodd’s bill will have to overcome the opposition of those who feel as Nixon did over the Pentagon Papers: “people have gotta be put to the torch for this sort of thing.” The struggle for a free press, which is one of democracy’s most valuable checks on government secrecy and evasion of accountability, is always a hard-fought battle. But it’s one worth fighting.
As Jim Taricani, who is prepared to be imprisoned for his refusal to identify his source, told his colleagues in the press: “We are the watchdog for the public … every time court rulings chip away at [our] independence, the public is a loser.”
Rob Hunter (firstname.lastname@example.org) is a senior majoring in political science and philosophy.