Ten years ago this month began a period of my life that I have come to call my season in hell. It was a prolonged horror of court hearings and depositions following the collapse of The Cincinnati Enquirer’s investigation of Chiquita Brands International. But like all calamities, it delivered unexpected insights. One of the most important for me was a fierce love of shield laws. To all journalists everywhere: you should love them too. These laws are fundamental to what we do. We should be fighting to get a federal shield law passed. So should every citizen who suspects that powerful institutions in our society regularly hide vital information from the public. After years of an uneasy truce between prosecutors and media organizations, federal officials have increasingly been dragging reporters to court and pressing them to reveal confidential sources. It is time to push back.
A decade ago, I learned the hard way that a shield law is one of the most important press protections we have. Shield laws, of course, give journalists the right to keep the names of sources confidential in legal proceedings. They are on the books in thirty-two states and the District of Columbia. Another seventeen states have upheld the idea of reportorial privilege in court cases (Wyoming is the only holdout). But no federal equivalent exists, despite repeated efforts in Congress.
My shield-law saga began on May 3, 1998, when the Enquirer published an eighteen-page special report, CHIQUITA SECRETS REVEALED, which detailed the political, legal, and economic woes of the huge Cincinnati-based banana company. As the number-two reporter on the project, I researched the troubled history of trade disputes between Chiquita and the European Union. I investigated environmental problems caused by pesticide use in banana production in Costa Rica. I interviewed displaced villagers in Honduras, banana farmers in the Caribbean, environmental experts in Washington, scientists in San Jose, and government officials in Brussels. I spent months studying banana production and researching Central American history. I checked my facts dozens of times. A brigade of lawyers vetted every sentence. I was proud of my work. I still am.
Lawyers and editors checked Mike Gallagher’s work as well. He was the lead reporter, and was focusing his work on allegations of Chiquita officials paying bribes at ports in Colombia. He relied heavily on anonymous sources. One of his sources, he claimed, was providing him with recordings of voicemails between Chiquita executives. My editors and the lawyers for Gannett, which owns the Enquirer, told me that I was not to know the identity of Gallagher’s source within Chiquita. If Chiquita sued, they said, the fewer people who knew the identity of this high-ranking source the better.
The project stunned provincial Cincinnati; the Enquirer had never attempted anything as ambitious in its history. But after the series ran, Gallagher unraveled. He argued fiercely with editors and me about strange follow-up stories that he hoped to publish. He ignored the directives of editors. When bosses questioned him yet again about his source and how he obtained information, he never gave clear answers. Worried editors sent Gallagher to an outside lawyer to talk about the project. He returned to announce that, on his lawyer’s advice, he would no longer talk about the project with anyone, inside or outside the Enquirer.
Soon we learned why: Gallagher had lied to us about having a source within Chiquita who had provided him information. Instead, he had illegally accessed Chiquita’s voicemail system himself, hundreds of times, despite being warned repeatedly not to do so by editors and lawyers. It was a stunning case of reporter misconduct, and, obviously, the Enquirer and I were caught in the blast. Under intense pressure from Chiquita, Gannett fired Gallagher, paid $14 million to Chiquita, and published a disturbing front-page apology that implied that Gallagher’s misdeeds had negated the entire series. The Enquirer and the rest of the Cincinnati media abandoned the substantive truth of the series. I was ordered not to write about Chiquita. The ban lasted five years.
It got worse. County officials set up a special prosecutor to investigate the newspaper and individuals who worked on the project. Gallagher, facing criminal prosecution, abandoned his carefully constructed self-image as an intrepid reporter and quickly cut a deal. He waived Ohio’s shield law and agreed to reveal sources. It was stupefying.
Within months of publication of what I thought was the best project of my young career, I found myself sitting in a shabby, windowless conference room in a low-rent section of Cincinnati’s modest downtown. My lawyer and I sat on one side of a scuffed table. The special prosecutor and his associates sat on the other side. They frowned and smoked cigarettes.