Editor’s note: This column is reprinted with permission of The Miami Herald.
There’s a debate swirling in Washington, D.C., courtrooms about whether reporters should be legally allowed to keep their promises to confidential sources.
Reporters from some of the nation’s largest news organizations are facing jail if they refuse to open their notebooks and share their sources with a highprofile, government-leak inquiry.
Newsrooms nationwide have responded with shock and alarm.
How could this happen in a country where freedom of the press and freedom of speech are fundamental civil rights vital to keep government accountable? In a country where a bedrock tenet is a media free from government interference?
The alarm is justified.
But anyone shocked by prosecutors and judges willing to make criminals out of journalists who defend these principles has not been paying attention. It has been coming for years, and the media have largely themselves to blame.
By the nature of their work, journalists’ notebooks and phone conversations are replete with details that lawyers, prosecutors and police find useful. It’s like having a small army of free investigators able to gain people’s trust. It is no surprise that newspaper lawyers are regularly employed to fight off subpoenas.
At first, the resistance is unequivocal and rooted in the lofty principles of an independent media.
But when it comes time to sacrifice for these principles, when the legal arguments fail and the choice is to compromise or face jail and fines, editors and reporters at news organizations large and small have quietly allowed the line to move as a matter of convenience.
Television stations routinely turn over unaired outtakes. Newspaper reporters rationalize themselves into cooperation deals. Lawyers encourage us to save the fight for another day, another subpoena.
It’s like feeding marshmallows to an alligator in the hopes that it will go away.
Matt Cooper of Time magazine learned this lesson.
He was the first of five reporters to face jail at the hands of a federal prosecutor on a hunt for his sources. Someone in the Bush administration is suspected of leaking to them the name of an undercover CIA agent whose husband had been publicly critical of her bosses.
Ironically, none of the five reporters — from organizations including The New York Times and The Washington Post — published a story based on the information.
The right-wing talking head who did — Chicago Sun-Times columnist Robert Novak — won’t say whether he cooperated with the inquiry.
Cooper cut a deal to testify after his source “released” him from his promise under orders from the White House, according to published reports. Cooper has said he satisfied himself that his source’s release was sincere and not coerced by the White House.
So Matt Cooper threw the government a marshmallow and testified, hoping it would be enough.
The alligator is back.
Cooper has been subpoenaed again, ostensibly to talk about another source. After all, if you’ll compromise on one — why not them all?
Only one of the five — Judith Miller of The Times — has stood her ground. She faces an 18-month jail sentence for refusing to cooperate and is free while her lawyers appeal.
Miller understands the stakes.
Journalism’s most important responsibility is to challenge authority, not to allow itself to be co-opted by it — to expose the mistakes of those in power, not to help them.
The people who drafted the First Amendment understood that governments lie and cheat and steal, and that those in power are often unwilling to police themselves. So they handed the task to a free press.
Of course, we fail at this calling more often than we should.
It is a difficult job policing the government.
Reporters can’t subpoena bank records or tap phones or threaten someone’s freedom. We don’t have badges and guns. The only tool we have is our word, our promise.
Without the strength of that promise, the residents ofWashington, D.C., would still be drinking poisonous water, dozens of Catholic priests would still be shuffled from church to church after being caught molesting children, and Richard Nixon would still be viewed as a great American president.
The more important questions center on the more-fundamental promises of journalism — promises that reporters make every time we pick up a phone. It is a debate to be settled in newsrooms, not courtrooms.
I was forced to confront these questions eight years ago, when I was sentenced to 70 days in jail for refusing to testify about a jailhouse confession given to me by a child killer.
I was bombarded with reasons to testify. Media lawyers said that the case could further weaken what little protections we had from subpoenas.
Editors warned that our readers would perceive us as protecting a child killer. Fellow reporters reasoned that there is no difference between “on the record” and “on the stand.”
Others suggested that reporters cannot hold themselves above the law.
In the end, for me, it came down to the fundamental obligations of journalism.
We interview accused killers because it isn’t fair to write stories based only on police accounts — because experience tells us that police make mistakes.
If journalists allow themselves to be used as government snitches, our promises of fairness and impartiality are meaningless.
People should feel free to call us collect from the jail, just as confidential sources should feel safe with our promises — no matter how distasteful or inconvenient it might be for the government.
I went to jail to protect not a child killer, but my credibility with the next guy and the woman after that — one of whom will be the victim of police errors or abuse, one of whom will be innocent, one of whom could be you.
I spent 15 days in jail before a federal judge let me out to fight my appeals.
The child killer was convicted without me.
The ordeal taught me that a free press doesn’t belong to journalists. It belongs to you, our readers. It is not ours to squander with our excuses. I learned that we cannot earn respect for these principles by compromising them.
I have a file folder containing more than a dozen subpoenas I received before going to jail. I don’t need one for the subpoenas I’ve received since.
There aren’t any.
It’s a terrible thing to ask a reporter to go to jail for doing her job. But the time has come to stand up and demonstrate that these principles — ones we mostly just argue in legal briefs and op-ed pieces — are worthy of that sacrifice.
The time has come to stop feeding the alligator.
David Kidwell is a Miami Herald staff writer. He can be reached at dkidwell@ herald.com.
