This feature celebrates one of SPJ’s four guiding principals: We are fighters for the First Amendment.
You’ve written a story that embarrassed someone who now wants the name of your protected source. Or perhaps a trial judge demands you testify and spill all.
The choice: Comply and lose your credibility by breaking your word with a confidential source, or risk a Graybar Hotel stretch for contempt of court.
Jailing journalists for refusing to name their sources is nothing new. In 1848, the United States Senate grew angry when a New York Herald reporter announced that the U.S. and Mexico had signed a secret treaty. The Senate locked up reporter John Nugent, but he kept his source secret. (Historians believe Nugent’s source was James Buchanan, who as future 15th president, appointed the former reporter special agent to New Caledonia).
Shield laws are statutes designed to protect journalists with either absolute or qualified privilege. Currently, 39 states plus the District of Columbia have such statutes, according to the Freedom Forum, a First Amendment guardian. All other states save Wyoming “have a judicial opinion that substitutes for a state shield law,” said Gene Policinski, Freedom Forum senior fellow for the First Amendment.
THE STATE WITHOUT A SHIELD LAW
“Wyoming is one of the most conservative states in the country,” said former Wyoming legislator Charles F. Pelkey, D-Laramie, sponsor of a failed 2020 shield law bill. “That may be the root of the problem. There is an inherent distrust of the press from the right. [The right] was certainly the root of the opposition here.”
In addition, various attempts to pass a federal shield law also have failed. The last unsuccessful attempt was in 2013. Proponents of a free press argue that a journalist ought to be shielded from revealing privileged information from a source the same way doctors, lawyers and priests are protected from giving out client information. Courts, to the contrary, often put on the brass knuckles in dealing with reporters, insisting that silence impedes someone’s right to a fair trial. In other words, if the First and Sixth Amendments collide, “it’s a no-win situation for a reporter when a court gets involved,” said Jim Willis, the author of 11 books on the news media.
Willis, for the Edmonds (Oklahoma) Beacon, covered the Oklahoma City bombing of the Alfred P. Murrah Federal Building, and the subsequent government investigation. “Getting asked to reveal sources is an inherent danger a journalist confronts,” said Willis, who acknowledges he was concerned federal authorities would demand he testify on what he uncovered and who he talked to prior to the federal trials of bomber Timothy McVeigh and co-conspirators Terry Nichols and Michael Fortier.
He stressed that he’s perplexed why media covering the Capitol storming haven’t seen how that event mirrors the Oklahoma City tragedy, given that pipe bombs were located in two Washington, D.C., locations.
CLASSIC SHIELD LAW CASES
Journalists may be familiar with the more sensational shield law setbacks. Perhaps most famous was reporter Judith Miller who served 85 days in jail for refusing to name source Scooter Libby in a story outing Valerie Plame as a CIA agent. She went from heroine to jobless after being fired by The New York Times for inaccuracies in her stories about Iraq having weapons of mass destruction.
Also of historical importance was the arrest of San Francisco reporter Lance Williams and Mark Fainaru-Wada, authors of “Game of Shadows”, for refusing to name a source in the Balco Scandal who provided secret grand jury testimony about then-Giants baseball star Barry Bonds. (Williams then was also a San Francisco Chronicle reporter).
In 2005, he was praised by Texas Rangers owner (and U.S. President) George W. Bush for his service to the sport. Soon after, for refusing to name a source, and the pair faced 18 months in jail — far more sentencing time than principals in the Balco affair eventually served. Williams, now an investigative reporter for Reveal, escaped only because the source came forward and freed his colleague and him.
What advice does Williams have for beginner and veteran reporters alike? “I was careful before, and I’m more careful now,” Williams told Quill.
“When you promise confidentiality to a source, you’re promising that you will not betray the source if the government pressures you to disclose the source’s identity,” Williams said. “Don’t make the promise lightly. There’s a chance you’ll be called on to keep it.”
Reporters stand to lose financially if a judge slaps a fine of untold thousands of dollars for defying a court order. A former chief operating officer of the Freedom Forum Institute and a founding editor of USA Today, Policinski worked 27 years in daily journalism. “Sources are jailed until they pay the fine,” he said, noting that bankruptcy is a high price to pay for journalists with a conscience.
In many stories involving federal cases where prosecutors threaten document seizures or demands for court testimony, a judge or government official will cite a national security threat. In reality, Policinski insists, few instances actually are a matter of national security. He said having a federal shield law might make officials think twice before issuing threats. “Often what is given by a reporter is hearsay and not admissible (testimony), anyway,” he said.
Another issue is that in this digital age, courts disagree on the definition of a true journalist. For example, in the past, courts have opined that freelance writers and bloggers exist outside First Amendment protections, said Policinski.
THE PRICE OF TRUMP’S “FAKE NEWS” CAMPAIGN
Years of former President Donald Trump and his supporters braying about fake news have created mistrust of reporters — something very different from the reaction to The Washington Post’s Woodward and Bernstein use of Deep Throat and other anonymous sources in reporting on the Watergate burglary. “In this era, people doubt unnamed sources exist,” Policinski said, adding that fact alone is a good reason to name as many sources as possible.
Policinski also cautions against using anonymous sources except in life-or-death situations such as a single USA Today story during the Gulf War when Kuwaiti women, raped by Iraqi soldiers, stood a good chance of execution if their names were released as sources. “Stop offering anonymity so easily,” Policinski advises, saying too many reporters meekly offer it as an opening gambit. “If I’m a public official, of course I’ll take it.”
One of the few perks for journalists who do serve jail time is that they cannot then be sued by a source for breaking a contract, as happened in 1991 to two Cowles Media reporters. The other perk that sometimes makes a prosecutor think twice is that “the reporter gets a raised standing in the profession and is made a hero,” Policinski said.
In cases where a reporter or publisher hands over a source’s name or documents, the press tends to look askance at those who cave. One such example is when otherwisedistinguished journalist Norman Pearlstine and reporter Matt Cooper revealed under duress the name of Dick Cheney’s Chief of Staff Scooter Libby in the aftermath of the Valerie Plame scandal. The New York Times claimed that many in journalism saw Pearlstine’s move as the betrayal of a “corporate lickspittle.”
SOURCE REPORTING IN THE AGE OF BLACK LIVES MATTER
Barbara Allen, director of college programming for the Poynter Institute, said protests such as Black Lives Matter may predict an area of shifting sands with regard to journalistic practice and ethics. In the past, if a protester told a photographer, “Don’t take my picture,” the journalist would object, saying, “You’re in a public place,” Allen stated.
However, the recent Capitol protests may give journalists pause, because published photos have inspired employers to dismiss employees and law enforcement to prosecute individuals. “Maybe there is something more going on here,” Allen said. “Maybe we need to listen better and tell better stories.”
Another example of shifting sands for journalists was USA Today’s post-insurrection request to its readers on Jan. 7, 2021, to help the paper identify a large assortment of “those who stormed the U.S. Capitol.” In an unusual example of crowdsourcing, the paper said it was trying to determine if the “rioters” were Trump supporters or leftleaning groups like antifa, a rather puzzling request since investigators will have little difficulty identifying protesters by using digital technology.
“Could the government demand the paper turn identities over?” Allen asked, posing the question as one perhaps appropriate for journalism class discussion. “Could police demand film from the insurgents themselves?”
Journalist and Utah State University emeritus professor of journalism Ted Pease said that USA Today’s request to identify persons in posted photos “would certainly seem to be a departure from the longstanding position of SPJ and others in the news media not to be used as an arm of law enforcement.”
Pease continued in an email to say: “Already, we have seen the press attacked during demonstrations (and not only on Jan. 6). The ‘lamestream media’ are already seen as the enemy in Trumpworld, and if news organizations start to be active allies with law enforcement in identifying participants in legal (or violent) public demonstrations, one can see how reporters will be at risk, and how members of the public might be less inclined to talk to them… Anyone can see how this could damage and undermine the special status accorded the press in the Constitution. After defending their status and role in society for all these generations, why would news organizations voluntarily trade that trusted position for that of snitch?”
WYOMING AND FEDERAL SHIELD LAWS IN THE FUTURE
One recent Wyoming journalist ordered by federal prosecutors to testify was reporter Emma Breysse of the Jackson Hole News & Guide. The prosecution wanted details about her interview with a bank robbery defendant after Breysse’s reportage stated he planned to give $140,000 from a Jackson holdup to the poor. The demand was retracted prior to trial after the paper’s publisher argued successfully that his reporter would be, in effect, a government investigator.
In addition, reporter and now Casper Tribune editor Josh Wolfson was on paternity leave when a judge demanded the names of his confidential sources. To his relief, the request went away after “the judge decided the request for confidential sources left open a door, and then we would appeal,” Wolfson said.
Wolfson noted that voting by the Wyoming Senate in 2020 for a shield law “wasn’t all that close to passing.”
In January of 2021, the bill’s chief advocate resigned to devote himself to his law practice. Why did he push so hard for passage? “My motivation came from the fact that I was a journalist for 25 years,” Legislator Pelkey said. Among the stories he covered was the saga of Lance Armstrong and whether blood doping contributed to his winning seven Tour de France championships.
“I know the importance of protecting sources,” Pelkey said. “At this point, our only hope is to have protection of the courts. We have no case law in Wyoming, so it needs to be tested in the future.”
Pelkey’s successor in 2021 is Karlee Provenza, D-Laramie, a 31-year-old doctoral student at the University of Wyoming. She said she is a proponent of pushing for a Wyoming state shield law in the future.
“Wyoming has dragged its feet for too long in [providing protection for] journalists and the First Amendment,” Provenza said, adding that the lack of a law has a chilling effect on source cooperation. “Anyone with highly sensitive information that may challenge the government is going to question whether it is smart for them to do so. Ultimately, this lack of protection just ends up resulting in less transparency as sources think twice about leaking information that they are worried about having tied to them later because we don’t protect this form of free speech.”
Likewise, Williams maintains that given fierce attacks on the media by the former president of the U.S. and his lackeys in state legislatures, the time has come for the Supreme Court to act on behalf of a strengthened First Amendment.
“Journalism badly needs a federal shield law,” Williams said. “The First Amendment is not just about giving somebody the right to stand on a soapbox in front of City Hall and criticize the mayor. It also exists to give the people access to independent accounts of the workings of their government. Often, that independent perspective is available only through confidential conversations between reporters and confidential sources. If those conversations cannot happen, all we will know about our government is the official version put out by the spin doctors.”
Hank Nuwer is a veteran freelance journalist for magazines such as Outside and Harper’s, and the author of five investigative books on hazing. A member of the Society of Professional Journalists for decades, he is a professor emeritus of the Franklin College Pulliam School of Journalism and splits his time between Indiana and Warsaw, Poland.
Tagged under: First Amendment, Shield Law