Unlike Judy Miller and Toni Locy and many others through the years, I had shield protection in the Chiquita case. Ohio’s shield law reads:
No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.
Nowhere in the legislation does it state the stories must meet some standard of societal importance. Or that the sources must meet some standard of ethical behavior. It’s a blanket privilege. And Ohio’s legal system has not collapsed since the shield law’s passage, back in 1953.
Of course, the Chiquita fiasco was by no means a simple shield-law case. Prosecutors went looking for chinks in the shield law in part because Mike Gallagher wasn’t just protecting sources. He broke the law. Gannett had no choice but to fire him. Facing prosecution, Gallagher quickly cashed in the only chit he had: he rolled on sources. He pleaded guilty to felonies, received probation, and promptly left journalism.
Then the prosecutors turned to me, and to others involved in the project. In my final showdown meeting with the special prosecutor, I wasn’t sure what he would do. I had resolved that it didn’t matter; I would stand by the journalistic principle of source confidentiality. I remember the moment: I held firm; the prosecutor stared at my face for a while, then shrugged. To my surprise, he backed down. He had threatened me for weeks, but this last meeting ended with a whimper. I signed a revamped document, which simply required me to tell the truth while maintaining the shield law—something I had done all along.
A few months later, a new special prosecutor (the county let the previous one go) assured me in a brief meeting that he wouldn’t challenge my right to the shield law. I took the witness stand once in a preliminary hearing in April 1999. I testified that an individual at one point had offered the Enquirer access codes to Chiquita’s voicemail, and I had given the information to Gallagher, since I wasn’t sure what we could do with it. I testified that Gallagher told me that an unnamed source had already provided him with the codes, and also that Gannett lawyers and editors had instructed him numerous times not to access Chiquita’s voicemail after he admitted he had briefly done so. No one asked me to identify anyone, and within minutes my involvement in any criminal proceedings was over.
The legal matters didn’t end, however; several civil cases dragged on for years, past when even the Enquirer cared to cover it in its pages. I was deposed numerous times. In several depositions, I had to repeatedly refuse to answer questions regarding confidential sources. At one point, a person whom Gallagher earlier had named as a source sued Gannett, claiming breach of contract. Along the way, he tried to get Enquirer employees, including me, to back up Gallagher’s assertion that he had indeed been a source. His lawyers were trying to force a journalist to reveal confidential sources in an attempt to prove their client had been revealed. Yes, it was as absurd as it sounds. The shield law’s importance for the free flow of information became clearer to me every time a lawyer pressed me to talk. Five years after the mess began, the U.S. Court of Appeals in Cincinnati upheld my right to the shield. The questions stopped.
To this day, I’m not sure exactly what transpired in all the legal wrangling. If I had waived the shield, would it have made a difference in who was prosecuted or how they were charged? Thanks to the shield law, I’ll never know. In the last ten years, people occasionally have asked me about my anonymous sources on the Chiquita project. I tell them what I have always said: I won’t discuss it.