This past summer, journalists received a jolting reminder of the possible consequences for promising confidentiality to a source with the jailing of New York Times reporter Judith Miller. During an investigation into who leaked the identity of CIA agent Valerie Plame, a grand jury turned to Miller for answers.
Miller previously researched the topic but never actually published an article outing Plame’s line of work. The court ordered Miller to testify to how she learned the information, but she refused to turn over her source. As a result, Miller was sentenced to prison for contempt of court until the expiration of the federal grand jury.
The event caused many journalists and media organizations to renew their petition for the need of a federal shield law to give journalists a legal ally in refusing to reveal confidential sources in court. It is a law many feel is necessary to ensure that whistleblowers and insiders do not shy away from the media for fear of being exposed — a law that will, in turn, help maintain the flow of information to readers and viewers.
But the public outcry for such a law is almost inaudible.
Recent studies reveal a decline in public trust in the media and that the use of anonymous sources in news content might greatly add to that distrust. With those facts in mind, experts attempt to speculate on the impact a federal shield law might have on the media’s credibility in the scope of readers’ and viewers’ skeptical eyes and whether having federal protection is worth the risk of losing their confidence.
A rise in skepticism
During the past few decades, public trust in media organizations has continued to decline. The State of the News Media 2005 annual report from the Project for Excellence in Journalism looked at the trend during the period from 1985 to 2002.
It discovered people view the media as increasingly immoral, inaccurate and likely to attempt to cover up mistakes.
Those who view the media as moral decreased from 54 to 39 percent. Sixty-seven percent of people said the media tries to hide mistakes, an increase from 13 percent. And those who believe press coverage is accurate fell from 55 to 35 percent.
If Congress passes the proposed federal shield law titled “The Free Flow of Information Act of 2005,” some experts say these negative perceptions could intensify and become a major obstacle for journalists to overcome to gain the confidence of readers and viewers.
Anthony L. Fargo is an assistant professor of journalism at Indiana University and has written six scholarly articles regarding reporter’s privilege. He said a federal shield law might strengthen the common public opinion that journalists think they are “above the law.”
“(The public) tends to view journalists as being kind of arrogant people who think they are above everybody else,” he said. “If you give them a special law, in the public mind, I think, that is only going to reinforce that perception.”
To make matters worse, anonymous sources can impact that negative perception even more, a recent Associated Press survey shows.
To examine how readers are affected when they read anonymous sources in news coverage, the AP conducted an online survey of 1,611 respondents from 42 states. While 42 percent replied that an anonymous source in media coverage would not affect their perception of its accuracy at all, 44 percent admitted to being less likely to view the news as fact.
Boston Globe Deputy Managing Editor John Yemma said his organization uses anonymous sources rarely. But despite the Globe’s awareness of the negative impression an anonymous source can leave on a reader, sometimes offering someone confidentiality is unavoidable.
“Readers are skeptical of anonymous sources,” Yemma said. “But sometimes they are necessary. In deciding to use them, the value of the information they divulge must be weighed against the credibility questions that anonymity raises.”
To offset any public doubt, Yemma said, instead of just identifying someone as a “source,” the Globe’s policy is to also explain sources’ motives for coming forward and what qualifies them as being credible. For instance, a reporter might note what position a source holds in the government or in a large corporation.
Perhaps due to an increase in publications’ and media outlets’ awareness of the negative impact anonymous sources can have on public opinion, a recent study found the use of unnamed sources has fallen dramatically in the past few decades.
In May this year, the Center for Media and Public Affairs released a study outlining the current tendencies for the national press to use anonymous sources in news content. The study contrasted the media’s coverage of Ronald Reagan’s first year as president in 1981 with the coverage of George W. Bush’s first year as president in 2001. In total, the study examined 22,923 stories and 77,488 sources.
The results showed that there has been a 33 percent decline in the media’s use of anonymous sources in news coverage.
“Newspapers have recognized that there has to be a preference to always get the person on the record,” said Laura Rychek, legislative counsel for the Newspaper Association of America. “In the cases that they are using (anonymous sources), there is no other way to get that story out. There are just some people out there – whistleblowers, insiders, disgruntled employees – who wouldn’t feel comfortable having their names appear with information.”
Many media outlets have instituted their own policies for using anonymous sources. The AP has a three-prong test for organizations to use as a guideline before offering anonymity to a source. The rules call for the journalist to make sure the source is reliable, the information is accurate and not available from any other source, and that the news contains facts — not opinions — fundamental to the story.
Yet despite media organizations’ efforts to regulate the use of anonymous sources, much of the public still remains skeptical of even the small number of confidential sources that do appear in news. Fargo said this simply could be due to the public not understanding how news organizations work. Because many people are not familiar with the ethics involved in how journalists obtain and use sources, he said, writing something such as “an anonymous official said … ” in a news story can be detrimental to its credibility.
“I talk to people all the time who ask me, ‘Do they really have sources when they say that?’ ” Fargo said. “Journalists don’t know that people perceive them that way. … The press does an absolutely horrible job of informing the public about what it actually does. There are a lot of people out there who really don’t understand how this all works.”
It is because of this doubt that many experts agree a federal shield law will not lead to an increase in offering people confidentiality.
“(The Boston Globe’s) standards on the use of anonymous sources are not dependent on a shield law,” Yemma said. “We seek to use these sources rarely. Widespread use of anonymous sources is not good for journalism.”
Kevin Golberg, legal counsel for the American Society of Newspaper Editors, agrees. He said that even if a shield law passes, it will not give reporters the go-ahead to freely offer confidentiality to sources without consequence. Although a shield law would give journalists more legal leverage in refusing to reveal sources in court, he said it doesn’t mean they are immune from being forced to testify altogether.
“I do not, however, believe that journalists will start handing out promises of confidentiality like Halloween candy,” he said. “This law does not mean reporters will never be subpoenaed. It simply means that the protection against ultimately being forced to reveal sources or produce notes or outtakes will be stronger.”
Outlook of Anonymity
Rychek said that relying on the First Amendment for protection is not enough for journalists. Each time a news organization is forced to release the identity of a source, other possible whistleblowers and insiders become more afraid to come forward, she said. This fear can create a chilling effect that limits the ability of media outlets to be successful watchdogs of the government.
“It is not about reporter’s privilege,” she said. “It is about facilitating the flow of information to the public that otherwise wouldn’t get out there. We are trying our best to make that clear. I wish they didn’t even call it ‘reporter’s privilege.’… It gets lost in the dialogue. It is more about the confidential sources.”
Today, 49 states and the District of Columbia — every state except Wyoming — either have shield laws or operate under case law that recognizes the existence of some form of reporter’s privilege, according to Center for Individual Freedom. Rychek said she hopes passing a shield law at the federal level would bring consistency to journalism law and create clearer limitations to when a federal court can force a reporter to reveal the identity of a source.
“We are hopeful that however (the Free Flow of Information Act) evolves, it would be something that the First Amendment community could get behind,” she said, adding that she hopes the law would not too narrowly define a journalist to exclude protection for people such as book authors and freelancers.
Fargo’s reservations about the passing of a federal shield law remain with how the public might perceive it affecting journalism coverage. Although he said he feels a shield law is necessary, he worries the public might become cynical of how honestly journalists will cover the public officials that sponsored the bill.
“It is kind of like asking ABC to run a critical review of a Disney movie,” he said. “Even if that never comes up, will people think journalists are doing that? There is going to be that perception.”
On the other hand, Goldberg said he doesn’t foresee this as a possible setback because a federal shield law would not visibly affect people’s day-to-day lives. Because of this, he said concerns about such a federal statute will drift to the back of people’s minds — along with any public opinion that it might affect media’s political coverage.
“The public has shown a very short memory with regard to most political votes undertaken by their elected officials when it does not directly affect their daily lives,” he said. “I think this would fall into that category. Most people would likely forget about this matter within months because it’s not directly on their radar screen.”
To increase the possibility of Congress passing a federal shield law, many experts agree it is important for journalists to help curb public skepticism. One way to do this, Fargo said, is for the media to do a better job informing the public of the law’s possible benefits to the flow of information. Until there is a more enhanced, widespread understanding of the key issues that shape the need for a federal shield law, he said, strong public support most likely will remain hard to find.
“Journalists are supposed to be storytellers,” he said. “So why aren’t we telling this story?”
Scheduled to graduate this December, Katie O’Keefe is currently a senior journalism major at Indiana University in Bloomington, Ind. O’Keefe recently served as the SPJ Kilgore/Pulliam intern for Quill, writing about issues relating to freedom of information.
