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.
Toni Locy, formerly of USA Today, was found in contempt recently by a federal judge for refusing to reveal her confidential sources for a story about Steven Hatfill, the bioweapons scientist who is suing the government for naming him a “person of interest” in the 2001 anthrax cases. Former Attorney General John Ashcroft himself named Hatfill at a press conference, but whatever case the government was trying to build fell apart. Hatfill was never charged with anything. He has every legal right to sue the government and pursue his case. Hatfill’s lawyers feel forcing Locy to violate confidentiality will somehow further their case. They are pressing the issue for one simple reason: they can. There is no legal protection on confidentiality for journalists in federal court. They are not concerned with journalists’ ethical code; they just want to win. Would Hatfill’s lawyers try to force other lawyers to abandon attorney-client privilege? They wouldn’t think of it.
But Locy faces jail time and steep fines. U.S. District Court Judge Reggie Walton even tried to forbid USA Today from paying those fines. An appeals court overruled him, thankfully, but the fact that Locy is in this position at all is appalling. Similar cases have popped up in federal courts in Washington, D.C., Illinois, California, and elsewhere.
Critics kick around a standard series of questions regarding the creation of a federal shield law. Should journalists be granted shield protections for any story they write, whether about a corrupt politician or the moment’s plummeting celebrity? Who is a journalist, anyway? These are legitimate concerns. But they can be resolved with healthy debate. Another question that gets asked also has an answer: Are we really missing any stories without a federal shield law?
In truth, we don’t know exactly what stories we are missing. But it’s a safe assumption that as the risk of identification increases, fewer sources will come forward, and the public will have less information. Many questions raised about shield laws divert the discussion away from the fundamental point: the shield-law privilege is vital because it makes reporters neutral parties in any legal problems sources may encounter. That is its great function and sole purpose. Sources must know that by coming forth with information, they risk consequences. They will be sought out. However, they must also know that reporters will not reveal their names.