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Protecting confidential sources
By: SUSAN H. KAHN Assistant editor
Panel discusses the importance of the Judith Miller case
On July 6, 2005, New York Times reporter Judith Miller was jailed by a federal judge for refusing to testify before a grand jury investigating the leak of CIA operative Valerie Plame's identity. Time magazine reporter Matthew Cooper was spared a similar fate when his confidential source in the White House rescinded his demand for anonymity.
Recently in Cleveland, Plain Dealer editor Doug Clifton revealed that the paper would not print two articles for fear of similar pressure to reveal confidential sources.
On Aug. 17, The City Club of Cleveland invited three journalism experts, Linda Foley, Irwin Gratz, and Mike Needs, to discuss the ramifications of this showdown between prosecutors and the press.
Foley, president of The Newspaper Guild, introduced her remarks with a quote from the organization's founder, Heyward Broun: "Free speech is about as good a cause as the world has ever known." Unfortunately, Foley said, free speech "often gets pushed aside until there are axes to be ground."
Citing the current administration's "propensity for secrecy," she said that without the ability to promise sources confidentiality, "the information you get is only what the powers that be want you to have."
In this post-9/11 era, the climate of fear has made the public more tolerant of government secrecy, she observed. "The administration has offered up a lot of information, much of it not true. Often, the only way to obtain the truth is to promise sources confidentiality."
In a 1972 case, Branzburg v. Hayes, the Supreme Court stated that "news gathering is not without First Amendment protections." As a result, in 49 states there are shield laws recognizing the privilege of journalists to refuse to testify or produce information in response to court subpoenas. However, she noted these are state laws and do not apply in federal cases such as the one Miller and Cooper were involved in.
"Many Guild contracts include shield language in them," said Foley, "but we need a federal shield law; this is really important in a democracy."
A recent proposal for a federal shield law is getting some bipartisan support, noted Irwin Gratz, president of the Society of Professional Journalists. While he conceded that the media might overuse anonymous sourcing, he defended this practice as a valuable journalistic tool.
"For a long time we (journalists) believed we had protection under the First Amendment, but the courts lately have not seen it that way," lamented Gratz.
While the Supreme Court declined to hear the Miller case, Gratz said there seems to be increasing public support for this issue. He noted that 34 attorneys general filed amicus (friend-of-the-court) briefs urging the Supreme Court to consider the Miller case.
"These were prosecutors; they had nothing to gain by this," emphasized Gratz. "But they recognized that there was a larger public good being served by this protection for journalists."
The Akron Beacon Journal's public editor Mike Needs said he talks to readers frequently, but he hasn't been hearing from them on the Judith Miller case.
"There has not been a single letter to the editor out of 800 that mentioned Judith Miller!" he said, expressing surprise at the lack of public concern.
Needs thinks many people feel Miller should be in jail. They reason, "If the President is required to testify before grand juries, why is The New York Times above the law?"
The justification for using confidential sources "goes to the heart of what we do," said Needs. "We watch government n if we don't, no one will."
Citing the need to protect whistle-blowers, Needs concluded, "a lot of the time people who have documentation are on the inside. Their only recourse is to go to the media, but they fear that if their identity is revealed, they will face reprisals."
On July 6, 2005, New York Times reporter Judith Miller was jailed by a federal judge for refusing to testify before a grand jury investigating the leak of CIA operative Valerie Plame's identity. Time magazine reporter Matthew Cooper was spared a similar fate when his confidential source in the White House rescinded his demand for anonymity.
Recently in Cleveland, Plain Dealer editor Doug Clifton revealed that the paper would not print two articles for fear of similar pressure to reveal confidential sources.
On Aug. 17, The City Club of Cleveland invited three journalism experts, Linda Foley, Irwin Gratz, and Mike Needs, to discuss the ramifications of this showdown between prosecutors and the press.
Foley, president of The Newspaper Guild, introduced her remarks with a quote from the organization's founder, Heyward Broun: "Free speech is about as good a cause as the world has ever known." Unfortunately, Foley said, free speech "often gets pushed aside until there are axes to be ground."
Citing the current administration's "propensity for secrecy," she said that without the ability to promise sources confidentiality, "the information you get is only what the powers that be want you to have."
In this post-9/11 era, the climate of fear has made the public more tolerant of government secrecy, she observed. "The administration has offered up a lot of information, much of it not true. Often, the only way to obtain the truth is to promise sources confidentiality."
In a 1972 case, Branzburg v. Hayes, the Supreme Court stated that "news gathering is not without First Amendment protections." As a result, in 49 states there are shield laws recognizing the privilege of journalists to refuse to testify or produce information in response to court subpoenas. However, she noted these are state laws and do not apply in federal cases such as the one Miller and Cooper were involved in.
"Many Guild contracts include shield language in them," said Foley, "but we need a federal shield law; this is really important in a democracy."
A recent proposal for a federal shield law is getting some bipartisan support, noted Irwin Gratz, president of the Society of Professional Journalists. While he conceded that the media might overuse anonymous sourcing, he defended this practice as a valuable journalistic tool.
"For a long time we (journalists) believed we had protection under the First Amendment, but the courts lately have not seen it that way," lamented Gratz.
While the Supreme Court declined to hear the Miller case, Gratz said there seems to be increasing public support for this issue. He noted that 34 attorneys general filed amicus (friend-of-the-court) briefs urging the Supreme Court to consider the Miller case.
"These were prosecutors; they had nothing to gain by this," emphasized Gratz. "But they recognized that there was a larger public good being served by this protection for journalists."
The Akron Beacon Journal's public editor Mike Needs said he talks to readers frequently, but he hasn't been hearing from them on the Judith Miller case.
"There has not been a single letter to the editor out of 800 that mentioned Judith Miller!" he said, expressing surprise at the lack of public concern.
Needs thinks many people feel Miller should be in jail. They reason, "If the President is required to testify before grand juries, why is The New York Times above the law?"
The justification for using confidential sources "goes to the heart of what we do," said Needs. "We watch government n if we don't, no one will."
Citing the need to protect whistle-blowers, Needs concluded, "a lot of the time people who have documentation are on the inside. Their only recourse is to go to the media, but they fear that if their identity is revealed, they will face reprisals."
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