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.)
As you can see, sources often are not the kind of people you’d want as babysitters. Yet the reporters were right to not name names. In the case of BALCO, the work made an obvious contribution to the public’s knowledge of steroid drug abuse and aided public discussion of the topic. The issue gets more complicated in the Valerie Plame case, which became a kind of media Rorschach test: war opponents saw the New York Times reporter Judith Miller as an uncritical lapdog schmoozing with the Bush administration; media critics saw the Washington press corps as grotesquely sucking up to power. Miller’s source, Scooter Libby, seemed to be out to smear Plame’s husband, Joseph Wilson, in White House revenge for his revelations that were damaging to the administration’s prewar case against Iraq. Many journalists are convinced that this incident was not the moment to assert the principle of not revealing sources, that it was problematic. Still, I believe Miller made the correct decision to go to jail rather than reveal a source. She did what she was supposed to do. Until Libby personally released Miller from her pledge of confidentiality, she stuck by her word and asserted the principle.
It’s a simple equation: if people with sensitive information are more likely to get in trouble when they contact reporters, fewer of them will do it. If fewer people come forward, less critical information gets to the public. Democracy is not served.
In the current session of Congress, a federal shield law, pushed by Indiana Republican Mike Pence and others, passed the House and passed the Senate Judiciary Committee (see “The Shield Bearer,” CJR, May/June 2007). Since then, however, the bill has languished, waiting to be called to the Senate floor for a vote. If the bill dies in this Congress, we can only hope the same bipartisan group that pushed it will reintroduce another next session. All three presidential candidates have said they support the concept of the shield law.
Journalists often talk about confidentiality when recounting stories that went journalistically right—Watergate being the classic example. Promises of confidentiality are more important when things go wrong—and that is when a shield law is most needed. A source taking a risk to provide information doesn’t want to know what the journalist will say if everything goes smoothly. He or she wants to know that the reporter will not be compelled to talk if everything goes bust.