The Confidentiality Crisis    

How can journalists protect their sources—and themselves—in a hostile legal environment? Posted April 4, 2006

Jailed journalists, hidden notes, coerced waivers of source confidentiality: Is this the trailer for a B-rated spy thriller or the state of American journalism today?

To evaluate the shifting rules for protecting confidentiality after a spate of subpoenas and court orders compelling reporters to testify about their sources, American Journalism Review, the Knight Center for Specialized Journalism and the Philip Merrill College of Journalism at the University of Maryland hosted a conference on Sunday and Monday with Washington bureau chiefs, editors, media lawyers and investigative journalists. "The End of Confidentiality? Journalists, Sources and Consequences" aimed to begin a dialogue that editors can continue in their newsrooms. AJR will include excerpts from the event in its June/July issue, but here are some highlights:

In his keynote speech, James Goodale, former vice chairman and general counsel of the New York Times, encouraged the press to "fight like tigers" to guard First Amendment freedoms. "As a consequence of what Judy Miller did, we are going to end up with better First Amendment laws," he said of the former Times reporter, who went to jail for 85 days before receiving what she felt was a voluntary waiver from her source. Goodale encouraged the press to hire First Amendment lawyers trained to protect the principle of reporter's privilege rather than criminal lawyers. He also touched on the question of whether bloggers should be covered by shield laws that guard journalists from revealing confidential sources. "I don't believe there are any blog cases yet with newspaper sources, but [if there was a] prominent blogger case, it should be a newspaper blogger because they are so connected to newspapers," he said. "That would be a wonderful first case for blogs."

The first panel of the conference featured a trio of media lawyers. Moderated by AJR Managing Editor Rachel Smolkin, the session featured Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press; Lee Levine of Levine Sullivan Koch & Schulz, L.L.P; and Mark I. Bailen of Baker & Hostetler.

• The panelists agreed that reporters should permit as little source confidentiality as possible. As a guiding principle, "The starting place should be let's put everything on the record and then work towards confidentiality," Bailen said.

• Dalglish emphasized that reporters should establish clear ground rules with sources from the outset and said sources have come to expect more explicit negotiations.

• Levine advised reporters to keep their notes only as long as they have "a journalistic need for them," and avoid writing down source names. He encouraged news organizations to bundle phone systems to mask incoming and outgoing calls to individual reporters. He also urged caution with notes taken on a company computer and warned against e-mails that might reveal sources. But legal advice on the storage of notes is not clear-cut. Bailen noted that in 90 percent to 95 percent of libel cases, notes work in a reporter's favor.

• Even if a journalist is compelled to reveal a source, the journalist is still liable to that source, added Bailen. Regardless of the circumstance, by confessing a source, a reporter breaches a promise of confidentiality.

• Dalglish provided instructions for reporters who are subpoenaed: "The first thing to do is contact your editor. Don't go out and do something rash. Do not destroy your notes. The key is don't panic, but don't just turn in everything they want."

• Levine noted that U.S. Attorney General guidelines obligate federal prosecutors to seek approval from the Attorney General and consult with media organizations before issuing a subpoena. The Valerie Plame investigation posed a unique circumstance because the subpoenas were issued by special counsel, who was not bound by these guidelines.

• Dalglish said the greatest threat lies with civil suits. "Judges are not going to turn journalists into martyrs by jailing them. They are going to make them pay a fine," she said. Civil suits, unlike grand juries, have no defined endpoints, so newsrooms have to calculate budgets for dealing with such penalties carefully.

• When editors post reporters' notes on the Internet as a matter of transparency, the trio agreed the decision should be a journalistic one. Dalglish expressed frustration with "the number of editors who have compromised in some way" by deciding to post journalists' notes themselves before handing them over to a grand jury. Still, this is one avenue for giving the public access to the information at the same time as the grand jury.

• According to Levine, another problem is the profession's failure to explain the importance of the reporter's privilege to the public.

• The panelists said a federal shield law would be a significant victory for the media. Dalglish predicted such a law could be enacted in the next four to seven years.

• Levine advised editors to "define victory smartly. I think we have to fight smarter than we have in the past when we knew judges would side with us if we had a precedent. There are times when fighting like a tiger is not pressing a judicial decision that goes against you," he said.

In the afternoon session, moderated by AJR Editor Rem Rieder, a trio of investigative journalists shared their views about protecting confidential sources. The panelists were Deborah Nelson, the Washington investigative editor for the Los Angeles Times; Jim Taricani, an investigative reporter for NBC's WJAR-TV in Providence, who was sentenced to six months of home confinement for refusing to disclose a confidential source; and Susan Schmidt, a Washington Post reporter who has won awards for her reporting, most recently on corrupt lobbyist Jack Abramoff.

• Nelson accused journalists of taking a "cavalier attitude" toward confidential sources and encouraged reporters to corroborate tips as much as possible with documented sources.

• Schmidt advised reporters to try to insulate themselves and their sources from leak investigations by obscuring the source of their information in news stories. She acknowledged this idea runs counter to the recent trend of transparency in sourcing but considers it necessary. At the Post, "now we might not say something is classified information or [from] a State Department source," she explained. In order to substantiate information in other ways, she suggests editors grant their reporters more time for a story.

• Taricani noted that legal bills for his ordeal totaled about $700,000 and said reporters and news organizations need to "be on the same page" in regard to the resources news organizations will provide to fight subpoenas.

• The journalists dismissed the notion of waivers as coercive. According to Schmidt, if sources "want you to disclose their names they will call you up. Otherwise it is meaningless."

• In regard to the editor's role in the source-reporter relationship, Taricani said his station now requires him to reveal his sources to his news director, which it did not ask him to do during his case.

• At the Post, where reporters also are required to share the identities of confidential sources with an editor, Schmidt said some journalists' concerns about editor turnover led Executive Editor Leonard Downie Jr. to allow reporters the option of sharing the names with him.

• Newsday's Washington bureau chief, Tim Phelps, said divulging sources to editors goes "over the line." Phelps, a conference participant, believes an editor should know a reporter's source only in general terms.

• When revealing a source to an editor, Schmidt suggested a lawyer be present. The attorney, bound by lawyer-client confidentiality, could take notes. Nelson added that an editor must protect a source's confidentiality and face the same legal repercussions as the journalist if the editor requires a reporter to share the name of a source.

• Taricani concluded by urging news organizations to take greater responsibility for their journalism. "Before we can get Congress and the public behind us, we need to clean up our own act in broadcast journalism and get back to basics" by establishing higher journalistic standards.

Gene Roberts, a journalism professor at the University of Maryland, former managing editor of the New York Times and executive editor of the Philadelphia Inquirer, offered the final analysis.

• Roberts said that journalists should not wait until a crisis arises to discuss source issues. "We aren't conditioning publishers, reporters and fellow editors while there is still time to think about it calmly and rationally." He encouraged editors to host newsroom conversations on confidentiality.

• Roberts also said journalists should destroy notes that could incriminate sources and leave no electronic trails. He considers this material "as much a violation of source confidentiality as standing up and revealing the name of the source to a grand jury."

• "We hope that what will come out of all this is education and discussion of the First Amendment and source issues in the newsrooms and bureaus of people who are here today and the hope that this will spread throughout the industry," he concluded.