From AJR,   February/March 2005

Not So Privileged   

A federal judge’s ruling is bad news for the media.

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.     

"Congress shall make no law . . . abridging the freedom . . . of the press."

The First Amendment looks absolute. Many journalists in the United States believe that it gives them the right to protect the confidentiality of their sources, no matter what.

But the U.S. Constitution is not self-executing. It depends on the courts to interpret and enforce it. As the journalists are learning, a lot of judges don't agree with them.

Several reporters have been held in civil contempt in recent months after refusing to comply with subpoenas in high-profile investigations (see "Under Fire," page 18). They face fines or incarceration, or both, which could last as long as they continue to resist disclosing their sources, or until the underlying proceedings come to an end. The object of this coercion is to persuade a reluctant reporter to come forward with the information sought.

But it's another matter when a reporter is held in criminal contempt. You can't "purge" yourself of criminal contempt by testifying. Criminal contempt is punishment imposed for defying a court order. Although it's rare in privilege cases, it happened in November, to Providence television reporter Jim Taricani.

Someone leaked Taricani a sealed FBI surveillance tape showing a government witness in a corruption case handing an official an envelope containing a bribe. His station, WJAR-TV, aired it while the grand jury investigation was still going on. Taricani didn't identify his source, claiming he'd promised confidentiality.

Lawyers in the case were subject to a gag order prohibiting them from disclosing the tape's contents. An investigation ensued, and Taricani was ordered to reveal his source. When he refused, the reporter was initially held in civil contempt, and then, after the 1st U.S. Circuit Court of Appeals rejected his appeal and he continued to resist, in criminal contempt. He might have been sent to jail. But in December, out of consideration for his health, U.S. District Judge Ernest Torres sentenced him to six months of home confinement.

At the sentencing hearing, Torres set out to destroy a series of "myths" that he claimed surrounded Taricani's case.

First, Torres said, Taricani's promise of confidentiality didn't serve the public interest because it didn't uncover corruption. "All that it accomplished..was to provide Mr. Taricani and his station with a scoop during sweeps week." Second, Torres denied that punishing Taricani will chill journalists from engaging in legitimate newsgathering. Third, Taricani isn't being punished for doing his job, "unless one defines a reporter's job by gathering news obtained by others by illegal means..and then concealing the identity of the individual who violated the law."

Fourth, "an individual reporter [is] ill-equipped to make the ultimate decision as to whether a source is entitled to anonymity." It's up to judges to do that, Torres said. Finally, Torres said his order is not an assault on the First Amendment. The only "assaults" he found were "assaults on the rule of law..on the effective administration of criminal justice, and..the constitutional right of a defendant to a fair trial"--and "the principle that lawful court orders must be obeyed."

Do you see the pattern here? The rhetoric that most journalists, and their lawyers, have relied upon for years to convince judges that the public interest requires recognition of a privilege didn't sway Torres. He gave lip service to the idea of a reporter's privilege in the abstract. But Torres rejected it here because, as he saw it, grand jury secrecy has been violated and a fair trial threatened. The bottom line is that reporters must obey court orders. End of discussion.

So when sentencing time came, it didn't matter that defense attorney Joseph A. Bevilacqua Jr. had stepped forward in late November and admitted he was Taricani's source. Nor did the issue of whether Bevilacqua signed a waiver, or whether Taricani had an obligation to contact him about it, really matter, either--even though at least two federal courts have ruled that the confidentiality privilege belongs to the reporter, not the source.

It didn't matter because Torres' goal at the sentencing hearing wasn't to root out the identity of the source. It was to allow him to define the reporter's privilege, and to punish a reporter who defied him. Judge Torres apparently doesn't think much of the core principles that many journalists say form the basis for a reporter's privilege. He has other priorities, like maintaining control.

If most of the federal judiciary agrees with him, we are in big trouble.