The special prosecutor wanted me to do something simple: sign a piece of paper agreeing to waive Ohio’s shield law. Doing so would require me to disclose confidential sources with whom I had spoken during the yearlong investigation. He made clear that the risks of not cooperating were great, and threatened to indict me on unspecified charges. I could lose my job; I could go to jail, he said. I must fully cooperate and waive the shield law or he would come after me. His threats, for a while delivered hourly in telephone calls to my lawyer, ranged wildly. He claimed he was going to prosecute me for being a co-conspirator of some kind. Now that I look back, his threats seem like bluster. At the time, they scared the hell out of me.
But early on in the crisis, I came to an unavoidable conclusion: keeping a source confidential was at the heart of being a journalist. I told the prosecutor I wouldn’t waive the shield. I clung to it.
Before the Chiquita fiasco, I considered journalistic responsibilities and rights in the abstract. I had a dim sense that the great challenges of my unfolding career might involve dodging bullets in a foreign war or secretly meeting some high-ranking White House official in a parking lot. Someday, in the future, I would be that journalist, I thought.
These notions, of course, evaporated in Cincinnati. My challenge was in that room with the chain-smoking special prosecutor. The question was not what journalist was I going to become, but what journalist was I at that moment. In this life, we learn about what we really believe not when things go well, but when they go wrong. I learned in that room that I would face jail rather than discuss confidential sources.
Looking back, I believe that my position was not machismo; it was an innate reaction as a reporter. I wasn’t just refusing to identify a particular person or persons; I was asserting that journalists, even amid failed projects, must stick to their promises and their rules. These rules did not evolve haphazardly; they developed naturally out of our essential role in an open society. Courts have not recognized the right of journalists to refuse to identify sources as flowing from the First Amendment. But journalists have resisted identifying sources since before the American Revolution.
I also don’t think my position was romantic. Reporters don’t promise confidentiality because of an idealized notion of the whistleblower. Though sometimes confidential sources are indeed heroic and altruistic, more often they are not. They sometimes have base motives, like revenge or personal gain. Some have political motives. Others have a grudge. Some are criminals, which can raise special complications that the courts have wrestled with over the years.
In fact, in the Supreme Court case that launched the modern shield-law movement, Branzburg v. Hayes (1972), Paul Branzburg, a Louisville Courier-Journal reporter, tried to assert First Amendment rights in refusing to reveal the identity of two hashish dealers he had profiled. (See “Attack at the Source,” by Douglas McCollam, CJR, March/April 2005.) The Supreme Court ruled five to four that the First Amendment does not protect journalists from having to testify against sources. The fact that Branzburg was shielding drug dealers didn’t help him. In its opinion, however, the majority acknowledged that “without some protection for seeking out the news, freedom of the press could be eviscerated.” This phrase helped press-freedom supporters argue for the creation and strengthening of shield laws in many states. What the First Amendment could not do, shield laws would.
Sometimes. In 1978, the New York Times reporter Myron Farber went to jail in New Jersey instead of revealing confidential sources on his story about a doctor charged with murdering his patients. More recently, in the performance-enhancing-drug scandal involving the Bay Area Laboratory Co-Operative (BALCO), San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada risked federal prison for a source. With no shield law to protect them, the reporters were headed to prison. At the eleventh hour, a witness tipped off the FBI that Troy Ellerman, the company president’s lawyer, was the source. Confronted, Ellerman confessed. (The attorney cited his own cocaine and alcohol abuse as a factor in his decision to leak sealed grand-jury testimony.)