Tanks and Shields  | American Journalism Review
 AJR  Columns :    ABOVE THE FOLD    
From AJR,   December/January 2006

Tanks and Shields   

Its time for a federal law allowing reporters to protect confidential sources.

By Thomas Kunkel
Thomas Kunkel (editor@ajr.umd.edu), president of AJR, is dean of the Philip Merrill College of Journalism at the University of Maryland.     


The grounds at Cantigny estate, in the western suburbs of Chicago, were painted with the leafy pastels of fall. Cantigny is the former home of Col. Robert R. McCormick, long-ago editor and publisher of the Chicago Tribune, and the estate is named for the village in France (pronounced Can-TEEN-ee) where he saw action in the first American victory of World War I.

McCormick commanded an artillery battalion, and interspersed among Cantigny's majestic oaks and maples are field artillery and tanks..lots and lots of tanks. For the first-timer, this juxtaposition of hardwoods and heavy metal is a tad surreal, but considering we news folk were gathering to chew over the latest industry crisis, the armament seemed metaphorically apt.

Our business is under assault on all fronts, from another round of falling circulation to federal prosecutors fishing for information to stock prices so stale that Knight Ridder's chief shareholder is demanding the company be sold.

Yes, tanks were perhaps just the thing.

The Cantigny conference, convened by the American Society of Newspaper Editors and the McCormick Tribune Foundation shortly after the indictment of Scooter Libby in the Valerie Plame leak case, was tackling two related issues: How can we shore up and sharpen our use of confidential sources? And how far do we go to protect them when prosecutors come calling, as Patrick Fitzgerald had done in his federal grand jury investigation?

The conferees were an unusual mix of editors, First Amendment lawyers, investigative journalists and even a stray dean or two. There was much lively discussion about the use, and abuse, of confidential sources but uniform agreement that news organizations simply cannot perform their watchdog function without them. Yet there was uniform agreement, too, that in the generation since Watergate, journalistic use of unnamed sources has become downright promiscuous.

It's an issue that goes to our credibility with audiences, a relationship currently in marriage counseling. Fixing it starts with editors and news directors who insist on enforcing the guidelines already in place at most major news organizations. These can be summed up fairly succinctly: Use unnamed sources only if it's really necessary. Verify a source's information independently before publishing. Don't let a source have anonymity to malign someone else. Try to at least characterize a source's position or interest in a story to give the reader a sense of his or her credibility.

Ken Paulson, editor of USA Today, told us that in the year after his paper started requiring reporters to justify using an unnamed source, such instances have plummeted 80 percent. Now it's true that USA Today's investigative agenda is not that of the New York Times or the Center for Public Integrity. But it's also true that most source abuse occurs in rather routine stories, not investigative blockbusters, so Paulson's point is well-taken.

Still, the more far-reaching and ominous issue about confidential sources is what happens when government agents go to court to compel reporters to disclose them. In the end, Patrick Fitzgerald's legacy will be less about Scooter Libby or Judith Miller than whether he emboldened other prosecutors to start subpoenaing reporters, a trend that was already on the rise. (See "Under Fire," February/March.)

Few reasonable people would argue that reporters deserve a blanket privilege; God knows we are not priests. But if the nation's founders thought it important enough to protect the press in their very first amendment to the Constitution, it's not much of a philosophical stretch to extend to bona fide reporters some kind of federal protection against prosecutorial fishing expeditions.

Going into the conference, I was one of those still on the fence about a federal shield law, several versions of which are circulating in Washington. Given that any such law would be the product of wide compromise, I fear it would be inherently weak and might eventually be leveraged to erode the stronger shields now in place in many states. I still worry about that.

But in a world that will see Judy Miller, Matt Cooper and Tim Russert as the star witnesses for the prosecution should Libby's case actually go to trial, I've come around. It's time to enact some kind of reasonable federal shield law for reporters. As various of the attorneys asserted at the conference, any law would have to be an improvement on the ambiguous and dangerous status quo.

While we were at Cantigny talking about how and when to use confidential sources, the Washington Post conveniently offered up a textbook case in point. Reporter Dana Priest wrote a story, based on information from anonymous sources, on how the CIA has been operating a string of secret prisons, some in undisclosed locations in Eastern Europe. The article was so detailed and authoritative that it would be hard for any objective reader to think she didn't have it cold. It was the sort of investigative piece that great news organizations must pursue and publish, but simply cannot without relying on confidential sources.

It's a distressing sign of the times that a week later, Republicans in Congress were calling for investigations into the sources of Priest's leaks rather than for investigations into why America is running black-budget gulags half a world away.

Get out the shield. Fire up the tanks.

###