From the Winter 2006 issue of The News Media & The Law, page 12.
By Murray Fromson
For journalism and journalists, these are difficult times. The good old days of the post-Watergate era — when reporters seriously began to resist court-ordered subpoenas and refused to identify valuable sources to whom they had pledged confidentiality gradually have eroded. The prospect of prohibitive litigation is raising concerns, not only in newsrooms but more importantly in corporate offices where the bills have to be paid. Now journalists are being tempted to ask their sources to release them from their pledge of confidentiality so that they can testify, a waiver procedure I find distasteful and alarming. Once journalism starts down that road of compromise, there is no way of knowing when, how and where it will end.
Well-intentioned lawyers and unsympathetic judges may well help to dry up access to the public’s right to know, render the Freedom of Information Act useless and inhibit journalists from doing the kind of investigative work that James Risen and Eric Lichtblau of The New York Times have done recently in exposing the National Security Agency’s wiretapping of and eavesdropping on American citizens without first obtaining warrants as required by law.
The reaction of President Bush — the suggestion that these two skilled reporters had somehow engaged in “a shameful act” — demonstrates how intolerant or lacking in understanding he is of the principles of civil liberties and a free press that are at the core of our Bill of Rights. Members of the Senate Intelligence Committee on both sides of the aisle seem to get it. But the public has been slow to express either its concern or anger over what appears to be a major scandal at the National Security Agency that may far overshadow the case of who betrayed CIA operative Valerie Plame’s identity. That might please the White House if it can subtly keep the heat on the press, have former White House aide I. Lewis “Scooter” Libby stonewall on his role in the leak, and have his lawyers threaten to subpoena reporters — when and if his case ever comes to trial. It surely takes the focus off of the administration’s troubles in Iraq.
Way back when, in the 1960s and ’70s, the press did have much of the nation’s support. Mounting anxiety over the Vietnam War that I covered in Saigon, coupled with the reality of battle being brought into their living rooms, caused a significant part of the public to view the press sympathetically. Support for the conflict was eroding rapidly. So, too, was trust in the government that took us into that moral swamp. Members of the Nixon Administration, most notably Attorney General John Mitchell and Vice President Spiro Agnew, were seen not only as enemies of the press, but sinister, untrustworthy characters who were on something of a witch hunt. An enemies list was in the making.
But more than three decades later, the mood has changed. The public’s respect for journalism has diminished and the craft itself is undergoing a metamorphosis. The new generation of newspaper owners, driven by the bottom line, is hardly enthusiastic about supporting journalists who resist court-ordered subpoenas requiring them to renege on their pledges of confidentiality to sources or face the possibility of going to jail. Even in the best of times, the owners and managers never were on the same page as their journalists.
That was a major reason why in December 1969, I proposed the formation of a reporters’ committee to J. Anthony Lukas, a New York Times journalist who, like me, was covering the Weathermen, a militant group of leftists, the Black Panther Party and the “Chicago Seven,” who were on trial for fomenting violence in the 1968 Democratic National Convention. We feared Mitchell would come after us in an effort to discover who and what we knew among the different organizations generally identified as anti-war. My argument was that our bosses, particularly those at the networks, would not defend us if we refused to comply with subpoenas being threatened by Mitchell. Television was still living under the cloud of FCC regulations that included the power to strip stations of their broadcast licenses even when that power was no more than an idle threat.
I believed then as I do now that journalists should be prepared to defend themselves and, if necessary, do jail time rather than break their pledges of confidentiality to valuable news sources. I can hear the grumbling now. Easy for him — a pious professor with tenure — to say, mutter the doubters. But it is clear to all serious-minded journalists I know that to submit to subpoenas and betray their sources would make us little more than agents of the government at the federal, state or local levels and dry up one of the underlying principles of investigative journalism. That’s why The Reporters Committee for Freedom of the Press came into existence to wage the good fight in March 1970 at a gathering in Washington of more than 30 journalists from around the country.
Today, unfortunately, the public is nowhere as agitated and angry about Iraq as it was about Vietnam. There are no massive demonstrations today on college campuses, no clashes with police on the streets of our major cities demanding an end to the American presence in Iraq, nor is there a draft that would have necessitated the call-up of far more young Americans. The administration, clearly with Vietnam in mind, is seeking victory over the insurgents on the cheap and doing it without most Americans feeling much personal pain.
The arguments over confidentiality and national security have tied up reporters in legal knots and most certainly have been used by the Bush administration to divert the public’s attention from its own willingness to concede the mess it has gotten the United States into during the past three years in Iraq. The President’s notion that from Iraq the seeds of democracy will be spread throughout the Middle East does not speak well of a man who has a Yale education. Trying to put Americans on a war footing, he has substituted the Cold War’s fear of communism with today’s fear of terrorism. He misuses the analogy of war when it is well established that wars are conducted between nations, not individuals or repugnant philosophies that we find ominous and disagreeable.
Whatever the circumstances, we obviously should grieve the loss of every American soldier, sailor or Marine, man or woman. But it also is important to appreciate the magnitude of the conflict and recognize that during the war in Vietnam, 1,000 Americans were killed in action each month. The total losses we have suffered in Iraq, while painful, are miniscule compared with the casualties we suffered in real wars like Korea, World Wars I and II and the Civil War. Unfortunately, however, since Sept. 11 Americans have grown accustomed to invoking the war syndrome. That allows the Bush administration to spread alarm and fear across the land, whenever the polls indicate the president’s popularity is dropping. It is all to the detriment of the American people, but especially journalists.
Murray Fromson, a professor of journalism at the USC Annenberg School of Journalism, was a working journalist for more than 32 years, a judge of the Pulitzer Prizes and a Reporters Committee founder.