A limited federal shield law would be better than the post-Libby status quo
SELECTIVE: Although Bush praised reporters for exposing steroid abuse in baseball, the White House whistled a different tune when it came to Libby.
In the aftermath of I. Lewis “Scooter” Libby’s perjury conviction last week, the journalistic fallout of the case remains a subject of intense interest for reporters and legal observers alike. While this will take time to become clear, Libby’s trial certainly revealed — to the dismay of many journalists — the sometimes-murky relationships between reporters and their confidential sources, and reporters’ varying motives for protecting this confidentiality
Over the past several years, dozens of reporters have been subpoenaed to testify before federal grand juries, or to provide testimony to special prosecutors. Threats to throw reporters in prison for not disclosing a confidential source, once a rarity, have become far more common.
The Libby case, meanwhile, has renewed questions of whether there should be a federal shield law. With the unbridled willingness of federal prosecutors and federal judges to subpoena reporters and find them in criminal contempt, the definition of a free press in our democracy seems to be at the whim of judges, many of whom have no love for journalists, or the institution of the press, despite their protestations to the contrary.
This isn’t an abstraction for me. I was the subject of subpoenas between 2003 and 2004, when a special prosecutor investigated who had provided me with an FBI videotape of Frank Corrente, the right-hand man of former Providence Mayor Vincent A. “Buddy” Cianci Jr., accepting a cash bribe in his City Hall office several years earlier. After being convicted by a judge of criminal contempt, I was sentenced to six months of (due to health concerns) home confinement.
From my perspective, the subpoenaing of reporters, and their imprisonment, flies in the face of what our Founding Fathers believed when they established a free press in the Constitution. As Thomas Jefferson put it, “Our liberty depends on freedom of the press, and that cannot be limited without being lost.” Yet public esteem for the media has plummeted since Watergate, and some of the most-publicized source-confidentiality cases, particularly that of former New York Times reporter Judy Miller, have shown the Fourth Estate in a decidedly less-than-flattering light.
Patrick Fitzgerald, the federal prosecutor in the Libby case, says subpoenas of reporters should be used very rarely. These words are hollow, though, since government lawyers now know that such tactics are successful, unless reporters are willing to go to prison — and more importantly — unless their news organizations are willing to financially back them. (NBC News and WJAR shelled out more than $500,000 in my case. The cases of Miller and former Time reporter Matt Cooper cost millions.) The current environment could also make would-be confidential sources, mindful of how they might be exposed in court, less willing to blow the whistle or drop a dime.
The ability of reporters to use confidential sources is vital to the public interest — as we’ve seen with countless stories, ranging from the Pentagon Papers to the Enron debacle. Were it not for such sources, many of these stories would not have come to light.
Ultimately, if we are going to have a free and vigorous press, federal judges should not be sentencing reporters to prison whenever they refuse to comply with an order to give up their confidential source. Judges need to be forced by the law — a limited national shield law — to balance the detrimental effect to society if reporters in such instances do not reveal their source.
: News Features
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