While its too soon to gauge the extent of the damage, the Judith Miller/Matthew Cooper case already has clouded source-reporter relationships and impelled news organizations and journalists to reexamine practices ranging from negotiating with sources to taking and storing notes.
By Rachel Smolkin
When Danielle Brian read that Time Inc. was giving reporter Matthew Cooper's notes and e-mails to the special prosecutor investigating the leak of a CIA operative's identity, she was stunned.
"It was a bombshell for us when we saw what Time had done," says Brian, executive director of the Project on Government Oversight, a watchdog group that works with media outlets and provides trusted reporters with names of government employees and contractors who must remain confidential. "We had always worried about a sloppy reporter, but I never thought there'd be a concerted decision made to turn over names."
She e-mailed Mark Thompson, a Time reporter she respects and has worked with for 20 years, to tell him that the magazine's actions in the Valerie Plame case will have "profound ramifications" for future collaborations with her organization. For a June investigative story on nuclear power plant security, Brian had put Thompson in touch with people who could lose their jobs if their names became known. "In the future, I will, of course, do everything I can to assist you with your stories, but because of your editor's actions, I simply will not be able to give you access to people whose identity needs to be protected," Brian wrote.
Her hesitancy is precisely the response that journalists and media advocates feared would follow the Judith Miller/Matthew Cooper cataclysm. It's too early to gauge the damage the case has wrought, but its immediate impact has been to unsettle some reporter-source relationships and to cloud journalistic practices ranging from negotiating with sources to taking and storing interview notes.
A number of news organizations, including the two at the center of the Plame case Time magazine and the New York Times are consulting with attorneys and investigative reporters to find ways to guard sources' identities if notes and e-mails are subpoenaed. The reviews of standard journalistic techniques have raised sensitive questions, some of which are not resolved in the law and have produced no clear consensus among media lawyers. Who owns a reporter's notes? Should news organizations hand out laptops or external hard drives to give individual journalists rather than the company control over their work? How long should a reporter save notes? How far should a news outlet go in protecting a source and defying a court order?
As editors and lawyers revise internal policies, the prosecutor's actions in the Plame case and the dramatic jailing of Times reporter Judith Miller have rekindled efforts to enact a federal shield law that would protect reporters from revealing sources in most situations. Within the last 18 months, more than two dozen reporters have been subpoenaed or questioned about their confidential sources in cases before the federal courts, according to the Newspaper Association of America (see "Under Fire," February/March 2005).
The NAA, which represents newspaper publishers, is leading a coalition of more than 90 media and journalistic advocacy groups in pressing Congress to pass a shield law. As part of that effort, NAA staffers spent early August trying to document the dreaded "chilling effect" of the case so far.
"With banner headlines of a reporter in jail and others being pressured to turn over their sources, there has been a flurry of subpoenas and court battles seeking to compel reporters to reveal their confidential sources," the NAA wrote in an early draft of a document it planned to circulate on Capitol Hill. "When prosecutors and civil litigants are unable to obtain the information they seek through their own due diligence, they are now emboldened to use the judicial process to coerce reporters into fingering their sources. Confidential sources and newsrooms have noticed this coercive effort, and what has resulted is a chilling effect on the confidential source relationship. Confidential sources have retreated, newsrooms have become wary and the free flow of information to the public has been impoverished."
Not everyone sees the fallout from the Miller/Cooper case in such bleak terms. Jack Shafer, Slate's media critic and editor at large, has spent months railing against what he sees as exaggerated worry about a reporter-source crisis. "I think journalists need to go to their local camping store and buy a good down jacket and do a little less hysterical whining about chilling effects," Shafer says. He notes that tension between reporters and the courts dates back to the 1800s and argues if the Plame case had happened in the "flyover territory" of Middle America, no one would have paid any attention.
Shafer has an ally in James Goodale, the former New York Times general counsel who crafted the media's strategy for the three combined cases that led to the U.S. Supreme Court's landmark decision on reporter-source confidentiality.
In 1972, the justices ruled 5-4 in Branzburg vs. Hayes that the First Amendment does not shield reporters from cooperating with grand jury subpoenas. Although the decision initially was viewed as an enormous defeat for the press, a concurring opinion by Justice Lewis Powell laid the groundwork for three decades of lower-court rulings generally recognizing a qualified constitutional privilege for reporters to protect confidential sources and materials. Forty-nine states now offer some protection to reporters through court rulings or shield laws.
"For the short term, it's going to be a rocky road, but in the long term, I think the newsgathering and source gathering will be stronger because every time someone in the press takes a strong stand on sources the fallout is usually beneficial in the long run," Goodale says. "You get more legislation passed, and the courts tend to be more respectful of the issue because someone thought it important enough to go to jail."
"As gloomy as things seem today, there is no greater gloom in the media world than in 1972 when the Branzburg case came out," he says. "That was the death knell, and there was no way the press could get out of that. But like Houdini, it did."
In 30 interviews, journalists, First Amendment attorneys and media advocates cited anxiety about how best to guard anonymous sources, the degree of protection afforded by federal law and the sense that longtime assumptions about reporters' abilities to guard sources now appear unfounded or even naοve.
More than one person interviewed for the story pointed out that reporters can't possibly document what stories they're missing because sources are choosing to stay quiet. As Knight Ridder Washington Editor Clark Hoyt puts it, "You don't know what you don't know."
Leaders at some papers, including Washington Post Executive Editor Leonard Downie Jr., say they worry about increased difficulties in dealing with anonymous sources but aren't aware of any setbacks so far. While Downie says he's concerned the Plame case could affect sources' cooperation, he notes that Post reporter Walter Pincus, who was subpoenaed in that case and in the federal civil lawsuit by nuclear scientist Wen Ho Lee, continues to rely on confidential sources almost daily; Pincus says his relationships with sources haven't changed.
At other papers, editors and reporters have detected greater hesitancy among some sources to disclose information. New York Times Executive Editor Bill Keller says he doesn't "think for a second this is going to be the death of anonymous source journalism." But several of his Washington reporters have noted signs of longtime sources becoming more anxious and more reluctant to speak freely on sensitive subjects. "At this point it's just anecdotal, but it's a worry," Keller says. "Some of it is just, 'I can't talk to you on the phone anymore,' and some of it is, 'I think I better lay low for a while.'"
At the Los Angeles Times, Washington Bureau Chief Doyle McManus said in an e-mail interview that at least one reporter who covers national security was asked by a source: "Will your bosses do what Time magazine did?"
Rebecca Carr, a former Justice Department reporter at Cox Newspapers who now covers government secrecy, also has heard from an established source who no longer feels comfortable talking. In July, she checked with one of her FBI sources about the status of a terror financing investigation she has been following for two years that has ties to a Georgia poultry company. (The Atlanta Journal-Constitution is a Cox paper.) At first her source jokingly told her that he couldn't even share an innocuous piece of information about the status of the case because she might be compelled to testify about their conversation. But when Carr began to push him for details about her story, he turned serious.
"He said, 'I'm just really nervous about turning over the information because I'm worried I'll be outed, and they'll find out who I am,'" Carr recalls. He told her that other people he worked with felt the same way.
In a subsequent conversation, the source told her agents are under great pressure to give up other agents in various leak investigations under way. "If you get outed, you are dead" on the job, he said. "People are scared."
"To me, it's not just about the drama of the Valerie Plame saga, which to me is like a Puccini opera," Carr says. "It is so much more important. It's about telling stories that matter, and those stories often require anonymous sources to confirm records or the direction of a story. If those sources start drying up, then the future Watergates won't be told. The loser in all of this is the public, because they won't know what is really going on in the government they pay for."
Stuart Taylor Jr., a National Journal columnist and former New York Times Supreme Court reporter who practiced law for three years, has noticed greater reluctance among sources to send or receive e-mails, even on uncontroversial topics. Researching the nomination of John Roberts to the U.S. Supreme Court, Taylor e-mailed various people with questions about what makes a good judge. One source told him he was willing to talk by phone but asked Taylor not to e-mail him again to avoid an electronic trail.
"It's something some people have been aware of already, but this case has certainly heightened people's awareness of it," Taylor says, referring to Cooper's now infamous e-mail to an editor that disclosed his conversation with White House Deputy Chief of Staff Karl Rove on "double super secret background" a secret that Time shared with special prosecutor Patrick Fitzgerald.
"I think the main effect of all this will be in a relatively small number of highly sensitive source situations, this could have a real chill," Taylor says. On routine reporting, he predicts it will be a minor annoyance fewer communications via e-mail, perhaps, and lengthier discussions about how to identify a source on background, a result that he and others noted could be a positive development for journalism.
There are signs that some sources outside the Beltway are asking questions as well. At a July community meeting, Indianapolis Star Editor Dennis Ryerson found himself reassuring a member of the city/county council in an episode reported earlier by Editor & Publisher. Referring to the Miller/Cooper case, the council member told him he didn't feel he was in as protected a position to talk to Ryerson's reporters and asked, "What's your response about that?"
Ryerson, who is pushing to include more investigative reporting in his paper see "Indianapolis 500," February/March 2004), replied that Indiana has a good shield law, and he wants to make sure his paper opens doors to sources rather than closes them. The council member seemed somewhat mollified, Ryerson told AJR, but "I can't tell you it was like, 'OK. No problem.'"
Chicago Tribune Public Editor Don Wycliff says he doesn't think "people who want to be whistleblowers want to be truth tellers will be completely turned off by this. It's just not human nature."
At the same time, Wycliff is "not so naοve as to think there'll be no effect"; in fact, he's modified his own approach to dealing with sources. He used to agree readily when a source wanted to go off the record before sharing information. "You don't want to interrupt the flow of conversation [when] you're getting good stuff," he says. But when a public official was about to tell him something in a recent conversation, Wycliff stopped him. "I said, 'Look, if you can't tell me in such a way that I can use it, don't tell me.'"
Wycliff sees this as a potentially healthy development for journalism. "One of the happy results of this, I think, will be to make reporters and editors and everybody think a lot more about that before the promise is made than at the back end," he says. "People will negotiate a lot more than they do now."
What about the conundrum that a reporter can't evaluate the importance of information until he's heard it? Wycliff acknowledges that's "one of the difficulties you're going to encounter." He says the case "changes the landscape, and frankly serves notice that we may be held to account about these things, and so we've got to figure it out."
One of the most confounding and unsettling aspects about Miller's jailing is that she never wrote a story about Plame. She was jailed for refusing to reveal the name of a source who shared something she did not publish a result that could discourage reporters who want to gather as much information as possible before sifting through their findings and deciding what merits publication.
"I can't imagine a reporter out there doing investigative work that doesn't ask themselves to count to 10 before they grant a request for confidentiality," says Paul McMasters, the First Amendment ombudsman at the Freedom Forum's First Amendment Center.
Time's Cooper testified before a federal grand jury on July 13, avoiding jail after his attorney secured a last-minute waiver from Rove that the White House reporter felt was specific to his situation and not coerced. Cooper, who has continued reporting on his beat during the legal fireworks of the last year-and-a-half, hasn't noticed a change in his relationships with sources. "My concern has always been as much about the emboldening effect on prosecutors as it would be about the chilling effect on other sources," he says.
Asked if he's altered any reporting habits, he replies: "Putting the name of a source in an e-mail is not something I'm likely to do again. I never imagined I'd be under subpoena, let alone [seeing] my company handing over my notes."
In the aftermath of Time Inc.'s decision to turn over Cooper's notes, some media organizations are revising or clarifying policies regarding protection of sources.
In early August, after consulting with attorneys at Cox Newspapers, Washington Bureau Chief Andy Alexander crafted a set of frequently asked questions and answers to guide news staffers at the company's papers.
The FAQ document recommends that reporters have very specific, upfront discussions with sources who request anonymity, even sources reporters have dealt with in the past. Does the reporter have the source's permission to share his identity with an editor? Under what conditions would the source release the reporter from confidentiality? "Is your promise of confidentiality eternal?" the document asks. "Is it unconditional, meaning that you must go to jail rather than reveal the source? If your source signs a prosecutor's waiver, is that sufficient to release you from your pledge?"
"I think a lot of common sense has to prevail here," Alexander says. "If you are dealing with someone who gives you information on background and it's relatively benign information and very unlikely to result in legal action, you probably wouldn't need to have as detailed a discussion. But if it's information that just came from a grand jury proceeding, you definitely need to have that discussion."
The guidelines encourage reporters to take steps to minimize potential exposure on sensitive stories, such as using code names in notes instead of sources' real names, or calling a source from a pay phone or meeting with her in person to avoid a phone log trail that could be subpoenaed.
The guidelines also suggest one alternative to writing everything down: "You want to be thorough and accurate in the reporting process, but you're under no obligation to leave a paper trial. In extreme cases involving highly sensitive information, you might avoid notes altogether and keep the information in your head."
For example, Alexander says, if "somebody said the bribe came from Congressman X, and that's all you're going to get out of them, and you're going to use that to go further, you might want to consider keeping that in your head."
The document states that reporters should assume their entire work product from notebooks to e-mails to tape recordings to photos is the newspaper's property and that any other work produced on company computers, including books, blogs or freelance assignments, also could be subject to a subpoena.
Cox's attorneys explored technological solutions to protecting source materials including creating a system in which e-mails would expire after a certain period of time but foresaw too many complications with such strategies. "They were not certain that we could protect ourselves or that it could be done electronically or legally," Alexander says.
Editors at the Los Angeles Times had been revising their paper's ethics code for some time, but they adjusted the final draft after the Miller/Cooper case arose to say explicitly that reporters should be careful about putting their notes in electronic form. Some reporters might keep notes in shorthand or store their files on a personal disk. "They should just be careful and be aware that once it's in a computer, particularly a company computer, they may have lost control over it," says former Times Editor John S. Carroll, who retired in August.
The ethics guidelines now state: "Reporters should be extremely circumspect about how and where they store information that might identify an anonymous source. Many electronic records, including e-mail, can be subpoenaed from and retrieved by non-newsroom employees."
At Time Inc., Editor in Chief Norman Pearlstine has asked his reporters to talk with editors in person or by telephone about stories involving confidential sources rather than communicate in writing. Like Cox's Alexander, he advises caution in recording identities of confidential sources. "In my own view, you should be able to remember the name of a confidential source without necessarily typing it," he says.
Pearlstine also is exploring technological solutions. One option might be to issue reporters laptops or portable external hard drives that would give individual journalists, rather than the company, control over their notes. In August, Pearlstine said he had asked his Washington bureau for feedback on what kinds of source protection would be most effective for them; he also was consulting with his technology and legal departments.
A similar review was under way this summer at the New York Times, where Keller was working on guidelines for how to protect sources. He was considering technological options, including "bundling" phone calls so that calls to and from individual journalists cannot be identified. (In a separate case, Fitzgerald subpoenaed telephone company records for Miller and Times reporter Philip Shenon. A federal judge ruled in February that the Times could keep its phone records confidential; Fitzgerald is appealing.)
Unlike Time magazine, the Times backed its reporter and did not turn over Miller's reporting materials to the special prosecutor. Floyd Abrams, one of Miller's attorneys, says the Times never had the materials the prosecutor requested. "Time magazine had documents which were responsive to the government's demands, and the New York Times did not," Abrams says.
He says the issue did not involve an interpretation of ownership because Miller had not taken notes on a company computer. "I think that if there had been notes on a computer it certainly might have raised harder issues," Abrams says. "There were some materials, but the Times didn't have them and never had them, and Judy did." He declined to elaborate on the content of the materials in Miller's possession.
Abrams, a prominent media attorney, thinks news organizations need to try to minimize vulnerabilities regarding the protection of sources. He says there's a good chance such efforts "will significantly lessen the risk of large media companies finding themselves in the situation that Time Inc. found itself in."
But some of these efforts carry risks as well, and media attorneys disagree about the best practices for taking and storing notes. Detailed notes aid reporters in writing accurate stories. And the same policies that could help reporters shield sources' identities in the event of a subpoena could hurt them if they are sued for libel.
"Our general advice I give with respect to notes is to be consistent in terms of your practice, whether you keep them or throw them away or discard them after a period of time," says Jonathan Donnellan, senior counsel for Hearst. "The greatest danger in a libel case is inconsistency... In my experience, I can't think of a libel case when notes were not helpful in terms of mounting a defense and showing thorough newsgathering and lack of malice."
Hearst editors have considered publishing a standards guide for some time, and Donnellan is consulting with investigative reporters at various Hearst papers, which include the Houston Chronicle and the San Francisco Chronicle. "People can't help but revisit this given the dramatic fashion in which Judith Miller has been sent off to jail, but at the same time, I don't think it warrants a wholesale change of practice in this regard," he says.
First Amendment attorney Lee Levine offers a similar warning. "I think we all have to resist the temptation to have a knee-jerk response to what happened with Time in the Plame investigation and have a new policy that's directed to that situation and that situation only," says Levine, who is representing two reporters who have been held in contempt in Wen Ho Lee's civil suit against the Justice and Energy departments. "It's not a simple answer."
Nor is the answer simple to the question of who bears the burden of protecting a source, particularly in the aftermath of Time's actions in the Plame case. Is it the reporter's responsibility? Should the news organization back the reporter or follow the law? What happens when the interests of the reporter and the company collide, as they did when the Supreme Court refused to hear Time's appeal and Pearlstine surrendered Cooper's notes despite the reporter's objections?
Pearlstine weighed the factors in what he considered a highly unusual case. The Supreme Court had refused to hear Time's appeal, which Pearlstine felt left his magazine squarely governed by Branzburg and its holding that if a federal grand jury is involved, reporters have no special privilege beyond that of other citizens, who must obey the courts. There were national security issues at stake and a possible violation of a federal law. He also had some questions about whether the conversation with Rove constituted a confidential source communication, although his reporter felt that it did. "When I put all that together, it argued for turning over the notes," he says. "It was the cumulative effect."
Pearlstine, a lawyer and former executive editor of Forbes magazine and of the Wall Street Journal, says he based his decision on journalistic principles rather than corporate law. "There is, however, a question of whether a publicly held organization can engage in civil disobedience, and whether it requires approval from the directors and shareholders," he says. "I never got to that."
Later in our phone conversation, he added: "I do not believe that a publicly held company can legally commit civil disobedience."
But former New York Times attorney Goodale rejects musings about media companies' responsibilities to shareholders as "a lot of legal hooey fooey" and says that a "publishing company that is public certainly has the ability to go into contempt and to engage in civil disobedience. I don't see what the hell the difference is."
When President Nixon's Justice Department subpoenaed then-New York Times reporter Earl Caldwell for his notes relating to coverage of the Black Panthers one of the three cases that later resulted in the Branzburg decision Goodale decided the Times should intervene and take custody of the reporter's notes. By doing so, Goodale aimed to give greater protection to the individual journalist and force the government to come after the institution of the New York Times.
He and others refined this theory when attorneys for Vice President Spiro Agnew subpoenaed reporters at the New York Times and the Washington Post for materials relating to stories about a bribery scandal that led to Agnew's 1973 resignation. All reporters' notes relating to Agnew were delivered to then-Times Publisher Arthur Sulzberger and then-Post Publisher Katharine Graham, and the papers asserted that the publishers, not the reporters, had ultimate responsibility for custody. The papers said, "Come get us," Goodale recalls with relish.
But he feels the actions of Time Inc., owned by Time Warner, have turned his theory upside down. "It's bizarre that here the theory that was designed to protect reporters was used to deprive reporters of that protection by Time," he says. "The position that Time Warner is taking should send shudders up every reporter's spine." (When I asked Pearlstine about this issue, he said he was not familiar with this aspect of the legal maneuvering in Branzburg.)
Mark Feldstein, director of the journalism program at George Washington University, worries that Time Inc.'s actions have driven a wedge between reporters and management.
A former TV investigative reporter, Feldstein "knew from the get-go" that his managers couldn't always be trusted. When he had sensitive information, such as materials involving grand jury testimony, he kept his notes at home to maintain control. "I suspect what's going to happen is you're going to have more reporters doing that now, more reporters acting in a guerrilla-war mind-set," Feldstein says.
Goodale agrees, and he's not optimistic that his strategy for protecting reporters is going to survive in an era of corporate ownership. He predicts reporters at many news organizations will undertake increased responsibility for protecting sources rather than assume management will back them. "That's going to be a major crisis now, but it's going to be resolved," he says. "What's going to happen is the reporters are going to pick up the cudgels here, but in the long run, they'll win."
During the grim period that followed the Branzburg decision, the media made little headway in persuading Congress to pass a law that would allow reporters to shield their sources. Nor was there action during the exhilarating period that followed Watergate, when journalists were seen as protectors of the public interest a prestige that is only a distant memory today.
Between 1973 and 1978, there were 99 shield laws introduced in Congress, says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "And the media could not get its act together. We couldn't agree on what we wanted."
At one time during the debate, the Reporters Committee said it would only support an absolute protection for reporters to shield sources, rejecting attempts to move forward with a qualified privilege. Some media groups argued the First Amendment offered sufficient shelter and opposed asking Congress to grant the media a protection it could later rescind.
"The perfect was the enemy of the good," says Tom Curley, president and CEO of the Associated Press and an early advocate in the current fight to enact a federal shield law. "At the time, coming out of Watergate, so many state shield laws passed; people were feeling good about the press' standing and afraid of ceding any standing" to Congress.
In a May 2004 speech in Riverside, California, Curley broached the idea that "with courts in some circuits showing signs of withdrawing their recognition of the reporter's privilege and threats of newsroom subpoenas and searches increasing since enactment of the Patriot Act, it may be time to consider a push for a federal shield law."
By December, Curley felt media groups had achieved "almost unanimous support" for the concept. "I think the prospect of so many reporters being in jail in so many places has really unified the industry like nothing I've seen in years," he says. He thinks the Miller/Cooper case has contributed "immensely" to that effort, particularly because Miller was jailed even though she didn't write a story.
The current shield law proposal, introduced by two Indiana Republicans, Sen. Richard Lugar and Rep. Mike Pence, is modeled on Justice Department guidelines that call for reporters' testimony only when journalists can provide information vital to a case that can't be obtained another way. The voluntary guidelines don't apply to special prosecutors or to civil cases in federal courts, but the law would.
At press time, House and Senate versions of the bill provided an absolute protection for shielding the identity of sources except in cases involving "imminent and actual harm to national security" that would outweigh the public interest in the free flow of information a stipulation that may have landed Miller in jail even if such a law already existed.
Justice Department officials opposed an early version of the bill but cancelled a scheduled appearance to testify at a Senate Judiciary Committee hearing in July; in late summer, media groups were waiting to hear whether the national security modifications would alter the department's position.
The media coalition supporting a bill includes prominent print outlets the New York Times and Time Inc. among them and the television networks. Neal Shapiro, who resigned in September as president of NBC News, says a shield law "is vitally important and absolutely needed not because reporters themselves are special but because what we do serves the public."
NBC avoided a clash in the Plame case when Tim Russert reached an agreement with Fitzgerald that allowed him to answer limited questions about what the "Meet the Press" host said in a conversation with the vice president's chief of staff, I. Lewis "Scooter" Libby. But NBC unsuccessfully battled prosecutors in another confidential source case, supporting reporter Jim Taricani of Providence affiliate WJAR-TV. Taricani served four months of home confinement for refusing to reveal who gave him an FBI videotape showing a top aide of the former mayor accepting a bribe.
"For me it was pretty easy," former NBC executive Shapiro says of his decision to support a shield law. The news division doesn't "get involved in legislation, except this."
Lobbying for a bill sacrifices media organizations' status as unbiased observers, a position that makes some news executives uncomfortable. And despite widespread support, not all journalists approve of a shield law.
"It's really tough for us," Curley says. One of the AP's reporters, H. Josef Hebert, has been held in contempt of court for refusing to reveal his sources in the Wen Ho Lee civil suit, entangling the AP still further. Curley has chosen to work behind the scenes through the Newspaper Association of America. "In this case, there's no question, we have skin in the game, so we're not unbiased observers," Curley says. "But we don't want to be the lobbying arm."
In July, the board of the American Society of Newspaper Editors voted for the first time in at least a decade to support a bill before Congress, provided the final shield legislation isn't so watered down that members no longer feel comfortable with it. The motion passed 16 to 3, with one board member out of the country.
"We all do believe the First Amendment should protect us and does protect us, but courts in this era have thought otherwise," says Cox's Alexander, who chairs ASNE's Freedom of Information Committee. Along with ASNE President Rick Rodriguez, executive editor of the Sacramento Bee, Alexander recommended that the board support a shield law.
"What we all fear here is sort of a runaway train," Alexander says. "You have prosecutors that are so emboldened by Miller/Cooper that other prosecutors at all levels will start subpoenaing notes, reporters, information, just sort of willy-nilly, whether or not it's the only source of information" to prove their case.
The Chicago Tribune's Wycliff was one of the three ASNE board members who voted against the measure. Wycliff believes that Miller should have testified and that U.S. District Court Chief Judge Thomas Hogan had no choice but to incarcerate her. "Not just Patrick Fitzgerald, the prosecutor, but the entire national judiciary says this is an important matter of national security, and your testimony is needed. That's got to count for something," he says, adding he doesn't think this case justified defying the courts.
"If Judy Miller went unpunished, it would have an effect as well. It would send a huge message, an enormously bad message, to the American public about the press and its behavior and its standing in our society." The message, Wycliff says, would be that "there are some people in the society who by virtue of their job can be exempt from the normal requirements of citizenship that everyone else has to abide by."
Wycliff believes the press should not seek special standing, which is why he opposes a shield law. "I think one of the reasons we're in the situation we're in is because we're so broadly disliked by the American public," he says. "Part of that reason is we hold ourselves apart in some ways and are maybe a bit too self-righteous sometimes." To advocate a shield law that bestows a unique status on reporters "is to basically say a certain class of citizens is going to have these particular privileges."
Another journalist who opposes a shield law is Bill Ketter, editor in chief of Eagle-Tribune newspapers in Massachusetts and a former president of ASNE. Ketter says the Miller/Cooper case has "given me some pause, only because I've seen so many people say that if there were a national standard, perhaps we wouldn't have these overreaching prosecutors and judges."
But he is troubled by the idea of defining through legislation who is a journalist and who is subject to a bill's protections, an exercise that he and Wycliff fear will limit the idea of a free press and encourage the government to license journalists. (See First Amendment Watch)
Ketter also dislikes asking lawmakers to protect press freedom. "I feel that we're asking a favor," Ketter says. "We're supposed to be watching the government, not asking favors of the government. We're the watchdogs, not the lapdogs... I thought we had a protection. I thought it was called the First Amendment."
Like many journalists, Ketter's reporters have been asking questions about the Miller/Cooper case. Why is the prosecutor pursuing Judy Miller? Would their newspaper stand behind them if they ever found themselves in a similar situation?
Ketter held seminars for his four papers the flagship is the Eagle-Tribune in Lawrence to discuss his reporters' concerns. "The biggest question from our reporters: What would the newspaper's policy be? The Time magazine approach or the New York Times approach?" The answer, he says, is the latter.
Ketter's papers rarely publish information from confidential sources and do so only if it's in the public interest and the reporter has complete confidence in a source or can verify the information through a document. An investigative series on auto insurance fraud in Massachusetts published in the summer of 2004 did not quote a single anonymous source.
But in the course of their reporting, his journalists do take information from people and promise not to use their names. "If we give the promise of confidentiality, then we have to be prepared to go to jail," he told his staff. "If we give it out, we've got to live with all the consequences that go with giving it." He says his staff seemed relieved.
In the aftermath of high-profile scandals involving misused or made-up anonymous sources, news organizations have tightened rules requiring reporters to share sources' identities with editors. If editors know sources' names, will they, too, find themselves served with subpoenas? Will they go to jail? Or will the Time Inc. episode discourage reporters from talking candidly with editors and impede efforts to bolster accountability?
It could take years before all the ramifications of the Miller/ Cooper case are clearly understood. Perhaps, as some early signs indicate, it will have a chilling effect on newsgathering, discouraging sources from stepping forward or convincing longtime sources that they should curtail their confidences. Perhaps some reporters will hesitate before pursuing a controversial story. Is it a subject worth going to jail for?
Perhaps warnings about a crisis have been exaggerated as they often are in journalism and the long-term impact on newsgathering will be negligible. The Plame case has been propelled by a unique set of circumstances a leak from an administration source who was not a whistleblower, a possible violation of an obscure and narrowly written federal law, a reporter in jail who did not write a story, a columnist not in jail who did. For all the bluster and all the fears surrounding the case, basic facts remain unknown.
The long-term impact might even be positive, if the case spurs reporters to take greater care in negotiating with sources about whether to grant anonymity and how to identify them in print. Maybe Miller's unyielding stand ultimately will inspire greater respect for journalists by the public, the courts and the Congress. Maybe a shield law will clarify federal rules for seeking reporters' notes and sources. Maybe some lawyers debating whether to subpoena reporters will look at Miller and decide it's not worth the aggravation.
In the short term, though, the case has sown confusion, anxiety and uncertainty.
At the Project on Government Oversight, Danielle Brian is considering asking news outlets for some sort of written assurance that the sources she finds for reporters will remain secret. Brian has greater confidence in the New York Times because Miller went to jail and the paper supported her, but she wonders how she can assure her network of whistleblowers sometimes senior policymakers, sometimes mid- or low-level employees who have little experience dealing with the media that they will be safe.
"There's the whole world of other outlets out there that haven't been tested under this climate," she says. "Are we ever going to feel comfortable giving confidential sources? I'm not sure that we are."