From the Fall 2004 issue of The News Media & The Law, page 8.
By Tony Mauro
A chill is descending on Washington, D.C., and it has nothing to do with the onset of autumn. It is the chill on news gathering that has begun to affect the everyday work of journalists covering the nation’s capital.
A summer of headline-making subpoenas and threats of jail and fines against journalists is taking a toll on reporting, even as journalists repeatedly refuse to reveal the names of their confidential sources.
“I think there is no question that there is greater anxiety among sources about talking to journalists,” Knight-Ridder Washington Bureau Chief Clark Hoyt told the Associated Press recently. At his own bureau, Hoyt said, two recent stories fizzled because sources who once wanted to talk backed off. The sources were fearful that the reporters would be ordered to reveal their identities or that the reporters’ phone records would be subpoenaed.
Even in my corner of the journalistic world, the impact can be felt. I cover the Supreme Court — never fertile ground for major scoops or revelations from confidential sources. Secrecy is woven into the culture there. Under the late Chief Justice Warren Burger, a 90-second rule was always rumored to be in place: any law clerk seen talking to a journalist for more than 90 seconds would be fired. And yet, through confidential sources, it is sometimes possible to get information around the edges, tidbits that will help round out a story, or sometimes even more.
David Margolick was able to exploit that possibility in a recent Vanity Fair article about the 2000 presidential election debacle. Over the summer he interviewed — on background — roughly a quarter of the 35 Supreme Court law clerks from that year to gain a fuller picture of what happened behind the scenes during the court’s Bush v. Gore deliberations. It was not a complete portrait, Margolick acknowledges; clerks for justices who supported the position of the losing candidate Al Gore were more eager to talk than those who clerked for pro-Bush justices. But it is undeniable that, thanks to Margolick, we now know a lot more about what happened during Bush v. Gore than we did before, and that is all to the good.
But after the summer of subpoenas against journalists in the Valerie Plame investigation, the Wen Ho Lee case and others, even meager Supreme Court revelations might be a thing of the past. When the court announced Oct. 25 that Chief Justice William Rehnquist has thyroid cancer, other knowledgeable sources inside and outside the court who might have ordinarily fleshed out the story were unusually silent. No one would reveal how long the diagnosis was known, or what Rehnquist’s course of treatment or prognosis might be.
Is that because the usual sources were worried that Supreme Court reporters would be subpoenaed? Not likely. Details about the chief justice’s health are not the kind of disclosures that would launch an investigation by federal prosecutors. But are sources more scared, or at least more aware of the dangers and dynamics of talking to reporters than they once were? No doubt about it.
It is hard to quantify the importance of stories that don’t get written and government wrongdoing and secrecy that go undisturbed — especially since some brave sources continue to slip information to journalists under the door. Stories in many newspapers, especially about wartime malfeasance, continue to be peppered with the revelations of unnamed sources. But over time, it may be that the stories we don’t see are the ones that will make the case that it is time for legislators and courts to take another look at legally protecting the journalist-source relationship.
In the wake of the subpoenas, New York Times Publisher Arthur Ochs Sulzberger Jr. has called for a federal shield law mirroring laws in many states. “The press simply cannot perform its intended role if its sources of information — particularly information about government — are cut off,” he said. Legislators are unlikely to embrace that concept as deeply as journalists do, but it is worth a try.
Taking another run at the Supreme Court on this issue may also have merit. Go back and re-read, as I did recently, the court’s 1972 decision in Branzburg v. Hayes, which denies the press any privilege to refuse to testify about sources before a grand jury. The bottom line of the case is not the only part that seems out of date. The confidential-source stories that provoked the ruling — articles about strategizing by drug traffickers and Black Panthers — seem far removed from what has provoked many of the more recently contested subpoenas. Though the current Supreme Court has no great love for the press, it may be easier to sell the justices on the idea of a reporters’ privilege when it involves the press role as government watchdog, rather than as an eyewitness to drug crimes.
If the high court does take up the issue again, the latest round of subpoenas, as well as the growing chill on newsgathering that it has provoked, will demonstrate the wisdom of the late Justice Potter Stewart, whose dissent in Branzburg articulates, as well as anyone can, the importance of a reporter’s privilege: “When neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury’s subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished.”
Tony Mauro, longtime member of the steering committee of The Reporters Committee for Freedom of the Press, is Supreme Court correspondent for Legal Times and American Lawyer Media.