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A Relationship Worth Understanding

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From the Fall 2003 issue of The News Media & The Law, page 20.

From the Fall 2003 issue of The News Media & The Law, page 20.

Of all the strange and mysterious things that journalists do, the one thing that is hardest to explain to non-journalists is this: why do we protect confidential sources so zealously?

Confidential sources are crucial to the way the press operates in this country, and are an integral part of the media culture — especially inside the Beltway, where a lot of critical reporting about government would vanish without them. Yet the public really doesn’t get why we need and protect these sources so much. Two recent episodes have served to trigger those questions once again.

The first came when columnist Robert Novak said he would not reveal who gave him the name of the undercover CIA operative whose diplomat husband criticized President Bush’s Iraq policies. As a result, a major investigation was launched in September to find out the name of the leakers, who could be guilty of violating the law against publicly identifying covert intelligence agents.

A few weeks later, D.C. federal district court Judge Thomas Penfield Jackson ordered five reporters to disclose the sources they used in reporting in 1999 on the case of Dr. Wen Ho Lee, the government scientist who was accused of spying on China. The reporters, as of press time, were expected to resist the order and appeal.

So why don’t Novak and the reporters for The New York Times, Los Angeles Times, Associated Press and CNN just save everyone a lot of time and money by identifying their sources? To the public — and, significantly, to the U.S. Supreme Court — we in the press should be regarded pretty much like anyone else who is called to testify in a case involving a crime they witnessed, or, in Lee’s case, in a privacy suit against the government. So give it up, Bob Novak and the others. Right?

Wrong, for two main reasons: one highminded and the other more practical.

The first is that journalists were not placed on this earth — or in our constitutional system — to do legwork for law enforcement. If we walk down the street as average citizens and witness a shooting or bank robbery, that’s one thing; as average citizens, we should cooperate. But if we are acting in our capacity as journalists, as watchdogs of government, we cannot be agents of government or even perceived to be.

The purest scenario is when a whistleblower comes to us to reveal wrongdoing by the government. Whistleblowers would never talk if they knew there was a likelihood, or even a possibility, that journalists would blow their cover.

Of course, rarely is the situation that pristine. Novak’s sources seems to have had only venal motives in revealing Valerie Plame’s name — specifically, undermining her husband’s credibility. The anonymous sources that inhabit many Washington news stories have similar intentions of advancing their own agenda or skewering someone else’s. Journalists don’t help their cause by overusing confidential sources to hype their stories.

But to protect the model relationship, that of whistleblower and journalist, in service of a higher good, we must keep everyday leakers confidential. There is just no compromising on that point. Put us in jail if you must, but don’t expect us to give up our sources.

A second reason for protecting our sources is perhaps less lofty. The fact is, if we promise confidentiality and then renege on that promise, we can be sued by our sources for breach of contract — as surely as if we were salesmen at Sears who failed to deliver a refrigerator as promised. The Supreme Court’s 1991 decision in Cohen v. Cowles Media Co. said as much, as the Court held, 5-4, that two Minnesota newspapers unlawfully obtained information by breaking their promise of confidentiality to a source.

Sometimes leakers are caught and they do get punished. Jonathan Randel, a low-level Drug Enforcement Administration employee, began serving a one-year prison sentence in September for providing “sensitive” but nonclassified information to The (London) Times. Documents revealed by Randel implicated Lord Michael Ashcroft, a British politician, in drug trafficking operations. When Ashcroft retaliated with a libel suit, Randel’s name was revealed — his attorney says it remains unclear who initially named Randel.

Randel was prosecuted in Atlanta for theft and mail fraud, but the charges were likely brought to send a message that government employees should keep their mouths shut.

And that is the eternal triangle, no matter who is in the White House: Whistleblowers seek out the press, government goes after the whistleblowers, and the press resists the government and protects the whistleblowers. At least the press and the whistleblowers are doing what they are supposed to do under the Constitution.

Tony Mauro is a Supreme Court correspondent for Legal Times and American Lawyer Media. He also serves on the Reporters Committee Steering Committee.