Lowering My Shield
A Murder Case, a Subpoena, and a Reporter Ready to Go to Jail to Protect What He Knows. Why Did He Start to Feel Like a Dope?
In December of 2000 a pleasant, well-spoken young woman made a strong argument in court that I should be sent to jail. “Your Honor, given the gravity of the court’s order and the seriousness of the persistent refusal to comply . . . incarceration would be an appropriate remedy until the court’s order is, in fact, complied with,” argued Emily Zimmerman, an assistant district attorney in Philadelphia.
I had expected this. In fact, I had put a toothbrush in my bag that morning, just in case, and warned my wife that I might not be home for dinner. But I didn’t really believe it. It was just twelve days before Christmas. We had a full line-up of cheerful family events in the coming days and weeks. It is one thing to enjoy the luster and admiration of your fellows for boldly defying authority at the risk of going to jail, and quite another to actually go to jail.
In my twenty-five years as a newspaper reporter, the past twenty of them for The Philadelphia Inquirer, I had never felt even remotely threatened by the law. The newspaper itself was tenacious in defense of its staff. I had received subpoenas from time to time, but the paper’s crack legal team had always made them vanish. I envisioned the subpoena as a species of jackrabbit that bolted whenever a lawyer opened his briefcase. There had been only one previous occasion when I actually had to appear in court. A defense lawyer sought my testimony regarding a story I had written about his client. I had stood alongside the paper’s able counsel, Katherine Hatton, looking innocent, important, and immovably silent as she formally protested. Hatton politely explained to the judge that an attempt to force my testimony would violate all that was holy, and would unleash a terrible, unrelenting, flaming bombardment of motions, amicus briefs, and appeals. The poor judge, glimpsing a sudden abyss yawning in the path of his brisk, two-day trial, did everything but get down and hold the door open for us as we exited. Hatton and I went out for a celebratory lunch.
Experiences like that had given me a false sense of security. I had assumed over the years that by virtue of some obscure clause in First Amendment law, reporters enjoyed a special standing in American courts. Pennsylvania, like many states, had its own shield law, which I imagined as a veritable fortress. As I understood it, reporters simply could not be dragged into legal proceedings. I considered such protections my due, vital to the practice of journalism, and deeply rooted in law and tradition. As with lawyers, doctors, and priests, journalists have a profound obligation to keep certain matters secret, so they are entitled to conceal their sources, notes, and even the early unpublished drafts of their stories — right? So when I received a subpoena in October of that year summoning me to testify for the prosecution at the murder trial of one Brian Tyson, I thought little of it. I had written about Tyson, and the prosecutors were entitled to do whatever they wished with my printed stories, but forcing me to testify against him was out of the question. It was tantamount to making a reporter a tool of law enforcement. If that became the case, what person in trouble with the law would ever talk to one? Those are the same arguments raised to contest the recent subpoenas of NBC’s Tim Russert and Time’s Matt Cooper in the search for whoever illegally disclosed the CIA affiliation of agent Valerie Plame.
Yet as I listened to the arguments over my fate in court, those certainties began to crumble. First of all, it became clear that I enjoyed no strong legal protections or traditions. Zimmerman’s indignant presentation made it plain that the only thing standing between a jail cell and me was Judge Jane Greenspan, of the Common Pleas Court, whose order I had defied.
What was even more troubling was that Zimmerman’s argument made a lot of sense. Why should reporters enjoy any kind of special status before a judge and jury in a murder trial? A young man, Damon Millner, was dead. His alleged murderer, Tyson, faced spending most of the remainder of his life in prison. Important matters were at stake. In the case of Plame, a malicious leak has destroyed a CIA agent’s career, and possibly placed her life, and that of others, in jeopardy. In such cases, the state certainly has a compelling interest in any or all information that might get to the truth. In the murder trial, prosecutors had every right to demand my testimony. If I had a strong professional reason to refuse — such as protecting the identity of a source — then why shouldn’t I be prepared to suffer the consequences? In Tyson’s case, I was under no obligation to conceal anything. He had sought me out after his indictment and had told me his story entirely on the record. He came to me seeking publicity. Why was I now defying the court to protect information he had intended to make public? My lawyers and the newspaper, on my behalf, were claiming that even such nonprivileged information was protected. But if I was going to go to jail over a principle, shouldn’t it be one that I believed in?
But backing down at that point seemed out of the question. I was caught in a web of professional fraternity. It would have been not just capitulation, but betrayal. If I had paid more attention earlier, I would have had a better idea of the issues at stake and I might have persuaded my editors to avoid this showdown. But I hadn’t. In court that day, eyeing the sheriffs with the handcuffs dangling from their belts, I didn’t feel particularly righteous or heroic or admirable, or any of the other grand ways I had always imagined someone would feel when taking a stand on principle.
I felt like a dope.
Brian Tyson shot Damon Millner on September 23, 1997. Millner’s body was found in a pool of blood in Feltonville, a once-genteel neighborhood that now borders on a drug- and crime-ridden district of North Philadelphia known as The Badlands. He had a hole in his left chest. A blue steel handgun was tucked in the waistband of his pants.
As Philadelphia homicides go — and there would be twenty-five in this police district alone that year — Millner’s murder was a fairly simple matter. Witnesses directed the police to the assailant’s house. Confronted there, Tyson promptly confessed. He was compliant, composed, and polite. He told the arresting officers that he had fired in self-defense.
It was a sadly familiar scenario. Both shooter and victim were African American men. Like most city murders, this one appeared to be drug-related. Millner was known to belong to a local gang. His body proved a veritable pharmacopoeia. According to his friends, before he was shot he had been sitting on some steps drinking beer and smoking a fat marijuana cigarette laced with PCP. Doctors at the emergency room of Albert Einstein Medical Center discovered a clear plastic bag in his rectum containing dozens of smaller bags filled with crack.
The killing was so typical it was a cliché. It didn’t even make the news. In the shooter’s house the police found a variety of weapons, pictures of Tyson posing with them like a gangster, and nearly $20,000 in cash. I would never have heard of the case were it not that the accused murderer was anything but typical. Brian Tyson, thirty-nine, was much older than most of those caught up in the city’s street drug trade. He wore conservative suits, voted Republican, lived in a house he said he owned (it turned out to be owned by his father) with the mother of his two children, and came from a middle-class suburban background. He was a college graduate (Morgan State University in Baltimore), and had worked for a time as a reporter for The Baltimore Afro-American. He had spent several years in Hollywood trying to make an acting career, and had played minor parts in a number of films — he can be glimpsed fleetingly as a security guard in the slasher movie Candyman II. The “gangsta” photos in his house turned out to be publicity stills.
Tyson had abandoned his Hollywood dreams in 1995 and returned to Philadelphia, but continued to see himself as a star. He was tall and athletic-looking, with smooth skin and the small regular features of a model. He became a flamboyant street entrepreneur, operating a hot dog vending cart by day, taking formal portraits at dance clubs in the evening, and producing rap music tapes for local talent whom he then put to work peddling their music on the streets. He saw himself as a role model, pushing a gospel of optimism, hustle, and the unlimited potential of hard work. When he worked his hot dog cart, he wore a tall white chef’s cap and white jacket. He dubbed himself “The Sausage King.” He pasted promotional stills from his acting appearances on the cart, including one in which he played the role of O.J. Simpson in courtroom re-enactments for a Los Angeles cable TV station. Neighborhood children started calling him “O.J.”
Tyson knew his case looked bad. He had no regrets about shooting Millner. He claimed that the younger man intended to kill him. Still, with the circumstantial evidence against him and with his confession, he believed that unless he could publicize his version of the story, he would be convicted. So when his family posted bail after several months of pretrial detention, Tyson went looking for a reporter.
I interviewed Tyson five or six times in the spring of 1998, by phone and in person. He was then living in a dilapidated row house in South Philadelphia with his girlfriend, Maya, and their two small boys. He was wearing a bulky electronic ankle bracelet that enabled the sheriff’s office to keep track of his whereabouts. He explained that his troubles began after he attended the Million Man March in Washington in 1995, and came home inspired to make a difference in his community. This had set him, he claimed, on a collision course with Damon Millner.
Feltonville had once been a tight-knit middle-class Jewish neighborhood. It was now a mixed bag of Mexican, Vietnamese, black, Puerto Rican, and Russian families. One abandoned corner house was used as a drug shooting gallery. Tyson’s block had become the hangout for a teenage gang, most of them from the nearby Richard Allen Homes housing project, who called themselves “The R.A.M. [Richard Allen Mob] Squad.”
After the march, Tyson targeted the gang and the shooting gallery. He offered the gang members, who styled themselves as rappers, an opportunity to record music in his basement and sell it on the streets, along with T-shirts and caps and other merchandise he peddled. They laughed at him. They were already making good money. So Tyson began trying to undermine their business. He harassed the gang’s customers, stopping those he found wandering up his block and confronting them. He sought help from the city, prodding the police and district attorney’s office to crack down. He did so with considerable skill but little success. “I guess I made myself a public nuisance,” he said wryly.
Tyson said his efforts did provoke a response, not from the city, but from the RAM Squad. A member of the gang tried to hold up Tyson’s cart at gunpoint, an almost comical misadventure that ended with Tyson’s young employee slapping the gun from the would-be robber’s hand. The windows of Tyson’s Chevrolet Blazer were shot out. Other gang members warned Tyson that Millner, an older member of the group, was going to kill him. Instead, it was Tyson who shot Millner.
On the night of the shooting, Tyson claimed he was confronted by several gang members in the alley behind his house. He said he stood in an enclosed corner of the alley and returned fire toward the street when shots were fired at him. But friends of the victim said Millner had been sitting quietly on the steps, smoking and drinking, when Tyson appeared in the alley and opened fire. The latter story had plenty of eyewitnesses, and was the version of events prosecutors planned to present at trial.
All of the witnesses were against him, Tyson insisted, because they were members or friends of the gang. I visited the alley looking for evidence that Tyson had been fired upon first. It was a small space, and according to Tyson’s story, he had stood with his back to a wall of garages. I found no bullet marks. One elderly neighbor who had heard the shots told me that he had heard only five shots, the number fired by Tyson. I was struck by the fact that the first patrolman on the scene had found Millner’s gun tucked in his pants. Would a man in a gunfight, shot through the heart, stick his weapon in his waistband before falling down to die? I came to believe that Tyson, frustrated, angry, challenged, and frightened, had probably fired the only shots that night. Both my editor, Bob Rosenthal, and I were enthusiastic about the story. Whether Tyson was guilty or innocent, we thought it illustrated the tribulations of life in a marginal urban neighborhood, the difficulty of forcing change, and the tragic consequences of one man’s determination to try — misguided or not. The story ran over several days under the title, HERO OR VIGILANTE?
While it was not our goal, the story helped Tyson’s defense. He received a small grant for legal assistance from the National Rifle Association and donations from private citizens, and his case was picked up by one of Philadelphia’s leading criminal trial lawyers. Linn Washington, a columnist for The Philadelphia Tribune, subsequently interviewed Tyson, and wrote several sympathetic columns about his plight. For many, his case symbolized the struggle of middle-class, law-abiding people against a tide of violence and crime.
As city prosecutors began preparing to make their case, they noted some small discrepancies between the stories Tyson had told me and Washington and the version he had told the police. Clearly the strongest argument for the defense would be Tyson’s own testimony, and it would help prosecutors discredit him if they could show he had told differing versions of the shooting. So they wanted to know everything Tyson had told me.
When the subpoena came, I turned it over to the paper’s editors and heard nothing more about it until the trial date approached. I was surprised that the summons had not gone away, like all the others in my career. In several meetings with Rosenthal and Katherine Hatton, as well as with counsel from a private law firm, the discussions involved how, not whether, to fight the subpoena. The lawyers all felt we would prevail, but in the unlikely event that the judge ruled against us and our early appeals fell short, they asked if I was prepared to go to jail. Without hesitation, I said, “Of course.”
There is a distinguished tradition of reporters defying court orders and going to jail. Usually the sticking point is a government demand for sources, notes, or drafts that the reporter feels duty-bound to protect. Most reporters feel they are not only in the right when they take this position, but that their protection is somehow guaranteed by the First Amendment.
In fact, it is not. Protections for journalists, even when they are concealing the identity of a confidential source, are very recent and very flimsy. The only time the U.S. Supreme Court has considered the matter is the 1972 case of Branzburg v. Hayes, which concerned the predicaments of three reporters, Earl Caldwell of The New York Times; Paul Pappas, a TV reporter from New Bedford, Massachusetts; and Paul Branzburg of the Louisville Courier-Journal. Branzburg had interviewed some local pot dealers who were converting marijuana into hash at home and had refused to lead the police to his sources. Pappas and Caldwell had been separately covering the Black Panther Party, and had refused to share with the government tapes, notes, and files related to their work. All three cases dealt with the need to protect confidential sources, but the most dramatic was Caldwell’s.
Earl Caldwell had been perfectly content covering golf for the Lancaster, Pennsylvania, Intelligence Journal when the civil rights movement suddenly made him, as a talented and experienced African American reporter, a hot commodity. A newspaper in upstate New York recruited him, and so distinguished was his reporting on race issues that almost four years later he was covering the most important story in the country for The New York Times.
“One of the first things I discovered was that the black groups didn’t trust journalists at all, even when they weren’t white,” Caldwell told me.
The shouted command, “Whites out!” was familiar to reporters attending planning sessions of civil rights groups. Caldwell would slip his pencil and pad into his pocket and sit tight as his white colleagues left the room, but soon his reports in the Times blew his cover. He remembers begging not to be excluded by arguing, in part, that a journalist was not a spy.
“That sensitized me right away to the whole issue of my role,” Caldwell says. “I wanted desperately to be a reporter. Along with other black journalists, I would get up and argue, ‘We don’t work for law enforcement. We’re not the government.’” Black reporters tried to walk a fine line in their work during those years, reporting honestly on events without betraying their sources. “We Will Not Be Spies Against the Black Community!” said an ad posted by the National Association of Black Journalists in African American newspapers around the country, signed by many prominent black reporters. Before the civil rights movement, reporters were not always so clear about that line. It was not uncommon for investigative reporters to share information with the FBI and local police in an effort to fight crime and government corruption. Caldwell himself sometimes did the same when he felt it involved no major compromise.
In the months after Martin Luther King Jr.’s murder in 1968, the country’s racial divisions widened. There was severe rioting in many American cities, and the provocative voices of black militants moved from the fringe to center stage. Caldwell was dispatched to Oakland, California, home base for the Black Panthers. “At their meetings there was a lot of talk about guns,” says Caldwell. “Huey Newton was on trial for killing a police officer. There was talk of taking violent action if he were convicted. On my first night in Berkeley I went to the house of Eldridge and Kathleen Cleaver, Panther leaders, and I wound up with a group that was moving a large number of weapons to Oakland. I wrote the story. I was worried about how they would react to it, and when there was no response I just figured they mustn’t read The New York Times. It didn’t dawn on me until later that they had wanted me to write about it. They wanted law enforcement to know that they were heavily armed.”
Back in New York after writing these stories, Caldwell was approached in the newsroom by two FBI agents. They wanted more details about the article on the gun shipment. He knew that any special access he would ever have to the Panthers would be blown if he was known to be cooperating with the authorities. And he was frightened of the Panthers. He refused.
The subpoena came when he was in San Francisco, a year later. He learned of it in a phone call from the Times bureau chief, Wallace Turner. The summons ordered him to testify before a grand jury in San Francisco. As Caldwell remembers it, Turner advised him: “You don’t want to get involved. Here’s what you do. Do you have a Times credit card in your wallet?” Caldwell did.
“Just go to an airport,” said Turner.
“Where should I go?” Caldwell asked.
“Anywhere. Go to Alaska. You’ve never been to Alaska, right?”
But Caldwell knew that such a tactic would only delay his problem. The subpoena sought all notes and tape recordings related to his Panthers coverage. He had been saving everything, planning someday to write a book. He had boxes of stuff. If it fell into the hands of law enforcement, the Panthers would hold him responsible. It was chilling. Caldwell believed he was doing work that served a useful social purpose. America was deeply polarized. There had never been a more important time for independent, honest reporting from the front lines of this struggle. In his experience, detailed reporting of the Panthers and other such groups usually showed that there was little reality behind their ugly, inflammatory rhetoric. The most significant step toward revolution made by the Panthers in Oakland was their free preschool breakfast program. Law enforcers amplified the worst, most threatening side of the organization. Caldwell believed his reporting was helping to calm things, keeping lines of communication open across a growing racial divide.
But the prosecutors had legitimate motives for seeking Caldwell’s files. If the Panthers were building an arsenal, and intended attacks on the police, law enforcement was duty-bound to respond. Information from Caldwell’s files might avert such attacks and spare lives.
Caldwell saw the U.S. attorney’s point. He had information that might help prosecutors put Panthers behind bars. But he also understood the cost, both to his newspaper and to himself, if he cooperated. He resolved he would not let his files fall into government hands. Much as it pained him, he and a Times staff assistant shredded his notebooks and file folders, unspooled all of his tapes, filled two tall trash cans with the material, and burned it.
“It broke my heart,” he says. “I have often regretted the loss of those files. If I had all that information today, it would be a tremendous asset.”
There was still a summons to appear before the grand jury. The Times retained a law firm in San Francisco to help him fight it, but when Caldwell met with John Bates, the lawyer assigned to his case, he was told: “We think you should bring all your material in and let us have a look at it. Some of it should probably be turned over to the FBI.”
Caldwell was stunned. This was the position of The New York Times? In fact, it wasn’t. The newspaper’s executive vice president, Harding Bancroft, flew to San Francisco. On the evening before Bancroft arrived, Caldwell met with other African American journalists and they decided he ought to have his own lawyer. The interests of the newspaper were not necessarily identical to his own. They drove around San Francisco late that night looking for the house of Anthony Amsterdam, a prominent law professor at Stanford University who had made his reputation fighting against the death penalty.
“It was quite a scene,” says Caldwell. “Three or four black guys in a beat-up car wandering around the white suburb of Los Altos, worried that the police were going to stop us. We found the house after midnight. Amsterdam’s wife got up and made us coffee. Tony came down in his bathrobe.”
Amsterdam listened. Caldwell mentioned the meeting scheduled with Bancroft and Bates the next day.
“You go home,” said Amsterdam. “You don’t go to that meeting. I’ll go.”
Amsterdam would represent Caldwell without a fee for the rest of the legal battle, which went all the way to the Supreme Court. The Times backed Caldwell the whole way, although Bancroft did try, without success, to persuade him to testify before the grand jury about information in the stories that had been published.
Caldwell never went to jail, but the issue at stake in his contempt case prompted the Supreme Court to answer the question: Should journalists be allowed to withhold sources and notes from the courts? The justices said no.
“We are asked . . . to grant newsmen a testimonial privilege that other citizens do not enjoy,” wrote Justice Byron White for the five-to-four majority. “This we decline to do.”
In the eyes of those who enforce the law, the demand for journalistic privilege is simply arrogant. Stephen Bates, a lawyer who worked on the staff of the Whitewater independent counsel and who is now literary editor of The Wilson Quarterly, writes: “Just as journalists contend that their public service (like that of doctors and lawyers) warrants a testimonial privilege, so, at times, do accountants, psychics, veterinarians, massage therapists, and plenty of others.” The truth is that such testimony often comes at a cost, including betraying those who would prefer that the person summoned remain silent. The First Amendment protects freedom of the press, but it doesn’t absolve it from all civic responsibility.
Nevertheless, enforcing contempt orders against stubborn journalists has been self-defeating for law enforcers. The resulting controversy turns reporters into heroes and usually increases the sales or viewership of their news organizations. In 1848, when John Nugent, a reporter for The New York Herald, refused to tell Congress who had given him a draft copy of a secret U.S. treaty with Mexico, he was held in contempt and locked in one of the Senate’s committee rooms. The newspaper doubled his salary and he continued to write stories with the dateline “Custody of the Sergeant at Arms,” with whom he went home every night for a warm meal and comfortable overnight lodging. After a month of this, the Senate let Nugent go, for “health reasons.”
In 1957 Marie Torre, a gossip columnist for The New York Herald Tribune, was sued by Judy Garland after quoting an anonymous CBS executive as saying that the petulant star was depressed because she had grown fat. (This turned out to be true; Garland was addicted to diet pills at the time and in difficult emotional straits.) The actress claimed it was a lie and a breach of her contract with CBS. She sued the network, too, and subpoenaed Torres, demanding to know which network boss had been talking behind her back. Torres argued that her career would be ruined if she revealed the source, and went to jail for ten days. She was deluged with fan mail during her prison stay, and later said that the episode was the best thing that had ever happened to her career.
But during the turbulent sixties, the subpoena problem went from occasional and amusing to epidemic. Reporters all over America were seen as eyes and ears into worlds that law enforcement had trouble penetrating. During the trial of the Chicago Seven, who were accused of inciting riots during the 1968 Democratic Convention, federal subpoenas were received by the major TV networks, Time, Life, Newsweek, and all four of Chicago’s newspapers.
To civil libertarians, this enforced collusion between journalism and the state seemed menacingly authoritarian. They took heart in a curious “concurring” opinion in the Branzburg case by Justice Lewis F. Powell. Powell had voted with the majority, but only half-heartedly. He called the decision “limited,” and then argued that reporters do have a constitutional privilege in all but the most narrowly defined circumstances:
“The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.”
Since there is no specific mention of any such “rights” in the Constitution, Powell’s line, in a backhanded way, set the first legal precedent for some kind of protection. He called for cases like Branzburg’s, Pappas’s, and Caldwell’s to be weighed on a “case by case” basis, and said judges had to strike “a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”
A dissent by the court’s fiery liberal, William O. Douglas, elaborated on the concept:
The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring to fulfillment the public’s right to know . . . . Knowledge is essential to informed decisions . . . . There is no higher function performed under our constitutional regime. Its performance means that the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government . . . . If what the court sanctions today becomes settled law, then the reporter’s main function in American society will be to pass on to the public the press releases which the various departments of government issue.
Caldwell lost his appeal, but the case established a first tenuous pretext for constitutional journalistic privilege. The immediate effect of the ruling was open season on journalism. Thirty-five reporters went to jail in the next eight months for refusing to cooperate with prosecutors. Responding to the onslaught, many state legislatures acted to strengthen existing journalist shield laws or to enact new ones. When Branzburg was decided, only seventeen states had shield laws — one of them was Pennsylvania, whose law dates back to 1937. Today thirty-one states and the District of Columbia do. Federal courts have strengthened the tenuous precedent set by the opinions of Powell and Douglas. Since 1972 eleven U.S. circuit courts have recognized journalists’ privilege, some of them repeatedly. Federal rules of criminal procedure outline strict limits for seeking the testimony of reporters. There has not been a direct constitutional showdown on the question because First Amendment lawyers have been unwilling to put this jerrybuilt framework to the test.
So while there has been substantial progress, reporters have nowhere near the safe haven most think they have. In most states, even many with shield laws, reporters can be compelled to testify and even to reveal confidential sources. In the words of Caldwell’s editor at the time (and eventually mine), Eugene L. Roberts Jr., who went from national editor of the Times to editor of The Philadelphia Inquirer, then managing editor of the Times, “Other than state shield laws, there’s nothing to protect reporters in any way. Either you testify, or keep quiet and go to jail. The strategy has been to resist to the point where it kind of becomes a pain in the ass, on the theory that prosecutors and judges will eventually give up.”
Reporters must protect confidential sources, and it would be a good thing for such a principle to be enshrined in constitutional law. Until it is, reporters would be advised to know more than I did on that morning in 2000.
The strongest thing I had going for me was a ruling from the Judy Garland lawsuit. Even though the reporter, Marie Torre, had been locked up for refusing to reveal her source, the case produced a ruling that set guidelines for summoning a journalist to testify. It described two basic criteria: 1) The evidence sought must be critical to the case at hand, that is, more than just interesting, relative, or useful. 2) The evidence sought cannot be obtained elsewhere.
Judith Rubino, the lead prosecutor, would have a hard time meeting those criteria in the Tyson trial. At best, my testimony could be used to help impeach Tyson’s, hardly the “critical” evidence in a murder case with numerous eyewitnesses. Rubino’s team nevertheless argued that Tyson’s testimony would be “central” to the case, so any testimony that cast doubt on it would be critical. They were only slightly better off on the second point. Since Tyson was going to testify, he could be questioned about what he told me and Linn Washington of the Tribune (who also had been subpoenaed), and his testimony could be compared to our published stories and to statements he gave to the police. Forcing Washington and me to give up our notes and to testify might broaden their chances of impeaching Tyson’s testimony, but it was not the only way.
Pennsylvania’s venerable shield law was unclear. It once offered strong protections but has been progressively weakened. The statute protects reporters from having to disclose “the source of any information,” and upon those five words the legal battles have raged in my state. In a 1963 case (Taylor v. Pa.) involving reporters at the once great, now deceased Philadelphia Bulletin, the state Supreme Court generously established that those five words meant not just human sources but all the raw material reporters amassed for a story (notes, tapes, photographs, documents, etc.). The pendulum swung in the opposite direction in a 1987 libel case (Hatchard v. Westinghouse Broadcasting Co.) in which an auto dealer sued after he was criticized in a local TV documentary. Hatchard sought outtakes from interviews done for the program in an effort to show that reporters had deliberately distorted the report. The Pennsylvania Supreme Court ruled in his favor, arguing that the critical phrase “the source of any information” was meant to protect only secret sources of information. There were scores of rulings in Pennsylvania and other states that fell somewhere in between those two extremes, but no clear precedent. In my case, Judge Greenspan was free to pick and choose.
Common sense can be the first casualty in these legal battles. Media lawyers tend to see themselves as defenders dug in behind a fragile wall, fending off all assaults. There is a strong financial incentive to fight, both to discourage prosecutors from trying, and to prevent notes, outtakes, and early drafts of stories from becoming public. To make an accusation of libel stick, for example, the injured party must prove that the information printed or broadcast was not just wrong, but deliberately wrong. Plaintiffs’ lawyers want to know how reporters and editors weighed, shifted, and edited information before publication. Such raw materials can be extremely damaging in libel cases. So the protection of newsroom information has become a first priority. Any successful legal effort to wring such material from a newsroom is potentially worrisome, because it establishes a precedent. It is a breach in the walls.
The problem with this standoff, which I think defines the current state of things, is that sometimes it has little to do with journalism. My case involved none of the high principles behind Caldwell’s. I had no confidential information to protect. Brian Tyson had come to me seeking publicity, and everything he told me was on the record. What troubled me was both the idea of going to jail for no good reason, and refusing to do my civic duty in the murder trial. My stand on “principle” was in fact just part of the newspaper’s effort to discourage such subpoenas in the future, to help the Inquirer make itself a “pain in the ass.”
The suspense didn’t last long. After listening to arguments from both the prosecution and defense for a few minutes, Judge Greenspan decided to hold Washington and me in contempt, but declined to send us to jail. “I don’t want to make reporters into martyrs,” she said.
Instead, she levied a $100-a-minute fine on each of us for the duration of the trial, a penalty which in my case would eventually total $60,000 (which, thank goodness, was assumed by the Inquirer).
I did testify, but only about matters in my published story. In the witness box I paged through printouts of the story after each of Judith Rubino’s questions, checking to see what I had written. If the answer to her question was not in the story, I declined to answer.
“Did [Tyson] ever indicate to you that he had taken money from some of these users . . . ?”
“I respectfully decline to answer.”
“Did you ever indicsate in the article that he said that to you?”
“No, I did not.”
“Do you have any independent recollection of whether or not he told you that?”
“I respectfully decline to answer.
And so it went. Rubino took my recalcitrance in stride. She is a big, smart, brassy woman who, after three decades in the cesspool of Philadelphia crime, isn’t fazed by much. In her eyes, Tyson had taken upon himself the authority to execute a Philadelphia citizen who, while not altogether innocent, was entitled to full protection of the law. Rubino wanted Tyson put away for murder. She knew he had told differing versions of his story around town, and she wanted the jury to be able to compare them. She never said as much, but I felt she saw me and my phalanx of First Amendment lawyers as insufferably elitist. Her attitude suggested, Get over it.
In the end, our testimony was insignificant. When Tyson took the stand — impressive in his gray pinstriped suit, the picture of a decent, law-abiding man who had been driven to kill in self-defense — he quickly demolished the good visual impression. He was dismissive and impatient even in direct examination, treating his own lawyer contemptuously. On cross-examination he was indignant and argumentative. He appeared slippery, hostile, and arrogant.
He refused to give Rubino straight answers, even to innocuous questions. When she asked him to explain what he had been doing in the hours before the shooting, Tyson said dismissively, “I was in my house, living.”
Rubino prodded. “I am asking you, over the course of the last three years, have you had occasion to think about what happened that day?”
“I never tried to think about what happened before the incident when they tried to kill me.”
He came across as precisely the sort of self-righteous soul who would, after months of frustration, shoot one of his tormentors. He was found guilty of murder in the third degree. Greenspan was not so generous with him as she had been with me. She sent him to prison for ten to thirty years.
I think, in retrospect, I should have promptly answered all the prosecutors’ questions and showed them my notes. The newspaper would have been better off. The Inquirer appealed my case (Bowden v. Pa.) all the way to the state Supreme Court and lost. It now stands as a permanent setback for the Pennsylvania shield law, and a further erosion of the sweeping interpretation in Taylor. And for what? I had nothing to protect. Instead of contesting every subpoena that arrives, newspapers should do a better job of picking their fights. In the Plame case, it isn’t clear yet why the special grand jury wants to question Russert and Cooper. But unless they have made promises of confidentiality to someone, it is their duty to cooperate. In my case, simply agreeing to answer prosecutors’ questions would not have compromised any journalistic principles, it would have cost the newspaper next to nothing (I doubt I would have been summoned to the trial), and there would now be no Bowden v. Pa. to sway future rulings on the subject.
I would have lost my chance to play hero for a day, but I would have done my duty as a citizen, and that would have been that.
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