The troubled status quo
The source-confidentiality case involving two San Francisco Chronicle reporters, Lance Williams and Mark Fainaru-Wada, demonstrates the shortcomings of the present situation. The duo faced up to 18 months in prison for refusing to disclose the source that provided them with grand jury testimony in the so-called BALCO baseball steroid scandal involving Barry Bonds.
In the time before Williams and Fainaru-Wada were slapped with a subpoena, no less a figure than President George W. Bush recognized the value of their investigative reporting, presenting the pair with an award and telling them, “You gentlemen have performed a valuable public service.” Blowing the whistle on steroids is apparently one thing, and raising questions about the White House’s justification for the war in Iraq, as Joseph Wilson famously did with an op-ed in the New York Times, setting into motion what would become Libbygate, quite another.
As it happened, prosecutors withdrew their subpoenas against Williams and Fainaru-Wada after a defense lawyer acknowledged giving the reporters access to the grand jury transcripts. In my own case, the leaked FBI videotape depicting a City of Providence official taking a bribe offered perhaps the most unvarnished example of corruption in Buddy Cianci’s City Hall.
If we are to have a free press that is able to watch over our government, it makes sense to offer protection to citizens who feel the need to talk with reporters on a confidential basis about government wrongdoing. And it follows that it makes sense to provide legal protection to the reporters who promise those citizens confidentiality.
As the noted University of Chicago law professor Geoffrey Stone points out, “The goal of most legal privileges is to promote open communication in circumstances in which society wants to encourage such communication.” Stone, who spoke at a conference I recently attended in Washington, DC, is concerned that citizens who want to right wrongs will not come forward without a federal shield law.
When confidentiality is sought, it is then up to the journalist, along with his or her news organization to weigh the public value of that information against the need for the government, or private business, to keep it from the public. Shield law critics question whether the press should be allowed to make such important decisions. Many journalists, including myself, consider such decisions vital to the presence of a free press in this country. There are many legal privileges that promote such communication, including the attorney-client privilege, the doctor-patient privilege, the psychotherapist privilege, and the priest-penitent privilege.
That’s why it’s the height of hypocrisy when government seeks to prosecute journalists for publishing or broadcasting information obtained from a confidential government source. The Libby case involving Valerie Plame is a prime example.
: News Features
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