From AJR,   December 1996

Reluctant Witnesses for the Prosecution   

Journalists shouldn't be compelled to testify about conversations with their sources.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

Should a reporter be protected from being forced to reveal the identity of a confidential source? Almost any journalist would answer that question affirmatively.

But should a reporter be allowed to refuse to testify about conversations with an on-the-record source? That's a little trickier.

Consider the case of David Kidwell, a reporter for the Miami Herald. In 1994, Kidwell interviewed John Zile, who had been accused of beating his 7-year-old stepdaughter to death, in the Palm Beach County Jail while Zile awaited trial. Kidwell managed to talk to Zile when other reporters had been turned away by authorities, apparently by identifying himself as Zile's friend.

Kidwell wrote a story about the interview that appeared in the Herald. Zile went to trial, but the case ended in a hung jury.

At that point, local prosecutors subpoenaed Kidwell, demanding that he take the stand at a second trial and describe the interview in detail. They say his testimony is essential to obtaining a conviction. For their part, Zile's defense lawyers announced that they would attempt to undermine Kidwell's credibility by cross- examining him about his news gathering techniques.

Kidwell refused to comply with the subpoena, citing a privilege against testifying based on the First Amendment. Unfortunately for him, Florida isn't one of the 30 jurisdictions that have a shield law, and recent rulings by the state's courts appear to have reduced the privilege to, at most, protect only journalists' rights to keep confidential sources secret.

When Kidwell continued to defy the court, the judge found him in criminal contempt, sentencing him to 70 days in jail and a $500 fine. A federal judge freed Kidwell after he spent two weeks in jail, directing the state appeals court to reconsider the case in light of federal rulings recognizing the First Amendment privilege.

Kidwell's case has divided the Florida journalism community. Some commentators support the reporter's position, lauding Kidwell for his willingness to go to jail rather than compromise his journalistic independence.

Others have labeled the reporter an opportunist seeking a career boost. They have castigated him for misrepresenting himself to get his interview.

Still others have said that whatever Kidwell did or didn't do to get the interview is irrelevant. They salute Kidwell and his employer for fighting the good fight through the state courts. But having lost that battle, they think Kidwell should cave in. After all, a journalist isn't above the law.

Many people who accept the notion that a reporter has to be able to protect confidential sources don't see why having to testify about a non-confidential interview should be a big deal.

And it isn't a big deal, unless you think the First Amendment means what it says – that journalists' independence should not be subject to interference by the government.

When a reporter is ordered to testify on behalf of a party in a case, he runs the risk of losing at least the appearance of being a detached, objective observer and recorder of facts. He becomes a partisan, an advocate for one side over the other – all those things that the press is relentlessly criticized for these days.

It is even worse when the side that demands his testimony is the government. Then the journalist has to live with the fact that future sources will regard him as a potential pipeline to authorities. And with no protection the government will call upon him again – often.

Nearly 25 years ago, the U.S. Supreme Court ruled that journalists who actually witness crimes have no constitutional protection against being forced to testify before grand juries. Although the court didn't directly address Kidwell's situation, most legal scholars say that, taken together, the dissenting and concurring opinions in that case yield a majority that recognized a qualified privilege. That means that journalists are presumed to be insulated from subpoenas unless the party seeking their testimony shows it is relevant, material and unobtainable from other sources.

But the Florida courts have rejected that privilege, as have courts in Minnesota, Idaho, California and Missouri. The Minnesota Supreme Court wrote, "Every citizen has a duty to appear and testify when subpoenaed as a witness in a criminal case, and we refuse to excuse an entire class of citizens, the news media, from such a civic duty."

In short, they don't see why reporters should be treated differently from everyone else.

The answer is simple. The role of journalists is unique. If they can't investigate without fear of being turned into government witnesses, they will stop investigating. The public will get less information, will be less informed and will be less able to participate effectively in democracy.

In the short term, forcing David Kidwell to testify might help the government win one case. But in the long run, the public will be the loser. l