If any good comes from the federal government’s high-handed seizure of Associated Press telephone records in a national security leak investigation, it could be new impetus for a federal shield law.
The need for such a law has been apparent since at least the 1970s, when prosecutors at every level of government began going after reporters who used confidential sources to develop stories that exposed corruption and incompetence in government. In some cases the release of certain information was the crime; in others the sources provided information alleging that crimes had been committed.
Either way prosecutors, unable to find the sources, went after the reporters in an effort to get them to divulge their sources, who might then be subject to prosecution. A prosecutor’s subpoena supposedly would compel disclosure, but in many cases reporters refused to comply and were cited for contempt of court.
Some were sent to jail under order to stay there until "purging themselves of contempt."
New York Times reporter Myron Farber spent 40 days behind bars over material relevant to a murder trial. Los Angeles Herald-Examiner reporter Bill Farr spent 45 days in jail for refusing to disclose who gave him a statement of confession for one of the defendants in the Charles Manson murder case.
A case involving a Louisville Courier-Journal reporter, Paul Branzburg, went to the U.S. Supreme Court and resulted in a 5-4 landmark decision in which the high court rejected the argument that the First Amendment gives journalists a right to refuse to reveal confidential sources. However, the decision recognized a "qualified privilege" — that is, a reporter cannot, because of the First Amendment, be forced to identify a confidential source unless there is a compelling reason to require such a disclosure.
Since that time media organizations have unsuccessfully pressed Congress for a federal shield law to clarify the confidential sources issue.
Many states, including Arkansas, have shield laws that may help in state and local cases. Our law, originally passed in 1936 as the first state law of its type and amended in 1949 to cover radio journalists, says:
"Before any editor, reporter or other writer for any newspaper or periodical, or radio station, or publisher of any newspaper or periodical or manager or owner of any radio station, shall be required to disclose to any grand jury or to any other authority, the source of information used as a basis for any article he may have written, published or broadcast, it must be shown that such article was written, published or broadcast in bad faith, with malice, and not in the interest of the public welfare."
In a 1978 case involving the Arkansas Gazette the state Supreme Court upheld the law, ruling that the plaintiff in a libel case could not require the newspaper to disclose a primary source used in an allegedly defamatory article. The court also cited the 3-part test established in the Branzburg case as a necessary burden for such a plaintiff.
Journalists receive offers of "off-the-record" information frequently, most often from public officials or employees who simply don’t want their names attached to the disclosure. Usually it’s not worth much because your mission is to report, not gather information you can’t use, but occasionally such an exchange can be helpful in understanding and-or finding other sources.
Much different and less common, though, is a source who comes forth with newsworthy information but seeks a guarantee of confidentiality. Often such a source holds a job that would be at risk. The journalist, unless his or her employer has a specific policy about confidential sources, must make a personal decision about whether to proceed.
Identifying your sources in a news story is basic journalism, allowing readers to judge the credibility of the information. Using anonymous sources can weaken credibility, so most news organizations avoid it except in unusual circumstances.
Prosecutors have learned that trying to compel reporters to testify under threat of contempt of court citations is not wise strategy. They still do it sometimes. Former New York Times reporter Judith Miller spent 85 days in jail in 2005 for refusing to reveal her source of information in the Valerie Plame spy case.
Those occasional incidents show the need for a federal shield law, but the issue is more complicated when federal officials claim that disclosure of certain information may cause harm to national security.
That’s the issue in the AP leaks case. The government contends that a May 7, 2012, story that disclosed details of a CIA operation in Yemen to stop an airliner bombing plot, as well as subsequent news reports, represented "a very serious leak, a very grave leak."
The government apparently decided that the best way to find out who leaked the information was to go after the phone records of AP reporters and editors who might have talked to the source(s). In theory, by examining lists of thousands of phone calls, the government could focus the blame and then go after the leaker(s).
The problem with that is when news organizations are used as prosecutorial tools, whistleblowers and others acting to expose government wrongdoing won’t take a chance. Thus the corruption never gets exposed.
Imagine how history might have changed if Richard Nixon had thought of this strategy instead of hiring burglars.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by email at firstname.lastname@example.org.