Doug Clifton has been a reporter at the Miami Herald, deputy chief of Knight Ridder’s Washington bureau, editor of the Miami Herald and currently serves as the editor of the Cleveland Plain Dealer. He recently raised a fuss in journalistic circles by revealing that he was withholding from publication two “profoundly important” stories based on secret documents that the paper had obtained, for fear of subpoenas from a prosecutor seeking the newspaper’s sources.
Thomas Lang: The New York Times published an article [last Monday] saying that you withheld two articles for “fear of criminal prosecution.” Is that the real issue? If not, what is it?
Doug Clifton: The issue was source protection. We felt as though there was a high probability [that] if we told the two separate stories based on the documents that we had they would generate prosecutorial interest to try to determine the ultimate source of the document. Because we promised those sources confidentiality, we knew we would face a major showdown. Our practice is not under any circumstances — save for, God knows, some hypothetical — to reveal a source once we’ve given him or her a promise of confidentiality. So we had to face the reality that there’s a reasonably strong certainty that we’d be subpoenaed. So we decided to pursue other means of getting those stories in the paper. And we continue to do that. We are using the documents as a roadmap for conventional reporting.
TL: What was the worst-case scenario here? You said that you might face a [law]suit to reveal the sources. Is that the worst-case scenario? Or is there anything beyond that? … What could possibly happen? Revealing the sources?
DC: It wouldn’t lead to revealing the sources, because we wouldn’t reveal the sources. The worst-case scenario is that you get called before a grand jury and are compelled to testify, and you don’t, and you go to jail, and the newspaper gets fined X amount of dollars until you do. That’s the worst-case scenario.
TL: You’ve referred before to the “the corporate citizen, the corporate entity” as having a “different level of responsibility.” What is the corporate citizen? How are its responsibilities different than a newspaper?
DC: I don’t know. When I discussed that with [New York Times reporter David Cay] Johnston it was at the end of our conversation with all the issues, involving sourcing, the chilling effect, the increased tempo among prosecutors to seek reporters via subpoena. Then I was just chatting about the Time thing. In a way I understand the issue with [Norm] Pearlstine, and why he did this — and I don’t know, I’m just philosophizing — that there maybe some substantive difference between what an individual can do in the way of refusing to comply with a court order via traditional civil disobedience, and the way a corporation can. The corporation is a different creature. It doesn’t speak just for itself, it speaks for some of the people who constitute the corporation.
So I was just musing about that and [Johnston] chose to put that in the story as somehow central to what I was saying. I think it’s more a philosophical/legal question and I’m not equipped to answer.
TL: Still, that was an interesting way of putting it, even though you were just musing. Where do you find yourself [on the issue]?
DC: I guess I do think there is a distinction between what an individual can do and what a corporation can do — especially a publicly-held corporation.
TL: From a journalistic standpoint, is protecting a source a higher standard than releasing information for the public good?
DC: Yeah, I think that you wind up having to make a choice between the two. I think this is the case — [if] you make [a source] an assurance that his or her identity will be confidential, then you owe that person adherence to that assurance. I think that if your aren’t prepared to make that assurance, then you don’t enter into a relationship with them.
TL: You have said that with these two stories that you are going to continue to pursue them without using these documents. If you come to the point where you decide “We can’t nail this story,” have you thought about letting your “individual journalist” take it to another publication? Have you discussed that at all?
DC: No, we have not discussed that. But the answer would be no.
TL: What was your motive in disclosing this information at the end of your column back in June?
DC: I wrote the column to try to awaken people — ordinary people — to the plight of the journalist who is just doing her job, but finds herself facing jail because she’s keeping her promise to a source. I wanted to turn it from being an abstraction — we talk about this hypothetical, this theoretical [impact] that the jailing of reporters has on future whistleblowers — to something that was real and that happens.
Now, people are acting as though this kind of decision has never happened before in this history of the world. In fact, I think, that these kinds of decisions happen in newsrooms to one degree or another every day. The journalism world has been chattering about the use of anonymous sources a great deal. ASNE [American Society of Newspaper Editors] has done a survey on the use of anonymous sources. An editor in Denver has just written a column saying we can’t be assuring people confidentiality in the use of anonymous sources because it erodes confidence in the newspaper. The Philadelphia Inquirer today does a thing that anonymous sources are the crack cocaine of journalism — that we are addicted to the use of them. So more and more newspapers are making decisions that they are not going to grant you anonymity. Either you go on the record with it, or we don’t report what you say. Now, that’s — I would judge — a pretty hefty clip. So we aren’t talking about two stories. We are talking about thousands of stories that aren’t being reported because more and more journalists are taking the position that they can’t grant anonymity. Not necessarily because they’re going to betray the sources confidence, but because they think reporting anonymously further erodes our credibility.
TL: So do you think this is something that has developed over the past few years? Do you have any feelings on why it’s trending this way?
DC: I think there has been a steady erosion of confidence in the press which has emboldened prosecutors and government officials and the like to take a harder line against the press, whether it be in seeking their testimony, before a grand jury, or stonewalling on giving answers, or being hardline on FOIA requests. The coming of 9/11, which has legitimized secrecy and used the fear of terrorism as a lever to extract from the public a close-mindedness about information. I think this current administration — even though most of the difficulties people face is on the local level — has sort of set a tone that has changed the atmosphere some. So, I think it’s a combination of all those things.
TL: If I can read you something that addresses what you just said. Sydney Schanberg, a press critic at the Village Voice, wrote this: “It’s open season on the press. Kneeling and cowering are useless as a response strategy. Standing tall on good-journalism principles is the only option. Sometimes that means fines will be imposed and reporters will go to jail.”
The first part of his comment is in line with what you just said, but in the end you’ve made a different decision.
DC: No, no I didn’t make a different decision. You can’t generalize from a specific, a couple cases that have specific facts that draw you to a specific conclusion. What you just read me was some sweeping, generalized, all-encompassing point of view. Our business is not sweeping and general. It is case-specific. It’s driven by the fact. And sometimes a subtle change in the fact changes the outcome of your decision — sometimes radically.
So, if you try [to apply] some glittering generality — the likes of which you just read — to make it through the thicket of day-to-day journalism, then you’re fucked, and you’re stupid on top of it all. Because we are in the judgment business, judgment is executed on a case-by-case basis. Any newsroom by a rigid set of rules collapses of its own weight, ultimately, because there is always a situation that’s going to make the rules seem ridiculous at some point or another. I wouldn’t say, “This is what you do in every case when you’re going to come face-to-face with a confidential source where a prosecutor is going to subpoena you before a grand jury.” Because you might have a case that is of such incredible importance that the public must know and that to not report it would be dereliction of duty of the worse sort. And then you’d act in a different way.
TL: That’s what I was getting at earlier when I asked which journalistic standard was higher: protecting the source or getting the story out. You’re saying now [that] it’s a case-by-case situation.
DC: I think it’s case-by-case. I do want to make this point: If you’re suggesting that you reveal the source because you have to report that story, I don’t buy that. I say, you report the story and then when you get subpoenaed you go to jail because you can’t give up the source.
TL: By that logic — and this is not a blanket statement — then some stories aren’t worth going to jail for?
DC: I think that’s a fair statement.
TL: Getting back to the specifics. The Cooper/Miller case involved a federal case where there is no shield law. What type of Ohio state protections or shield laws are there in relation to the stories you are holding back?
DC: [Ohio] does have a shield law, but one case we are dealing with it does not appear to have a protection. The other one is a federal case, so the Ohio shield law would not apply.Thomas Lang was a writer at CJR Daily.