The Supreme Court’s decision last week to turn down an appeal by a New York Times reporter who could face prison for refusing to identify a confidential source might seem like a matter of concern only for journalists.
Nothing could be further from the truth. If honest reporters can be jailed for keeping a source’s identity confidential, then it will be the public’s loss. The government will be able to hide all manner of secrets, including wrongdoing and ineptitude, because honest insiders will be afraid to speak to the news media.
You don’t have to go far to find examples where keeping confidences has served to inform the public.
In recent weeks, stories about delays, some of them deadly, and coverups in treating veterans at Department of Veterans Affairs facilities have been filled with information from unnamed sources. Some of these men and women wanted their names kept confidential for fear that they would be demoted or fired. Would anyone deny that veterans and the public are better off because they spoke to reporters?
The tradition of journalists keeping confidences has brought many other local and national stories to public attention. It allowed The Washington Post to reveal the shameful treatment of wounded soldiers at the Walter Reed National Military Medical Center. Photos obtained confidentially brought to light the abuse of Iraqi prisoners at Abu Ghraib. Leaks also exposed warrantless eavesdropping on Americans.
But the ability to keep confidences is now seriously threatened.
The Obama administration has prosecuted six former or current officials for leaks, twice as many as all other administrations combined. For several years, the Justice Department has been hounding Times reporter James Risen to testify about the source of his report, in a 2006 book, on an inept CIA attempt to disrupt Iran’s nuclear programs. Prosecutors want him to testify in the trial of a former CIA official accused of leaking the information. Risen has refused, knowing he might have to back that refusal by going to jail.
The Supreme Court’s decision let stand a damaging federal appeals court ruling against Risen. The appeals court, in a 2-1 decision, said reporters have no special privilege to shield confidential sources.
Reporters and others who value the First Amendment’s promise of a free press had hoped the Supreme Court would overturn the ruling. Now, their best hope — and the public’s — is that Congress will pass a proposed federal “shield law” to protect reporters’ ability to keep promises to sources. Almost every state recognizes a similar privilege, but it does not cover federal prosecutors or any cases filed in federal courts.
The House recently approved an amendment that would provide protection of sources in cases brought by the Justice Department. Its quick passage showed strong bipartisan support. A broader measure has passed a Senate committee. Both still have a long way to go and face some heavy opposition.
As for Risen, Attorney General Eric Holder said — without naming Risen — that “no reporter who is doing his job is going to jail.”
That’s fine, as far as it goes. But it’s unclear precisely who will be protected. And it certainly does nothing to bind future administrations.
A strong reporters’ shield measure is not a special-interest law, as some critics insist. As long as government and other powerful institutions try to cover up wrongdoing, confidential sources will be needed. Jailing reporters who seek to protect them undermines your right to know.
— LIVINGSTON DAILY PRESS AND ARGUS