Brandishing a Shield   

It’s time for Congress to pass a law allowing reporters to protect confidential sources—without facing financial ruin.

Maybe this will be the year.

For quite some time, journalism organizations and First Amendment advocates have been battling for a federal shield law to allow reporters to protect the identity of confidential sources.

The House overwhelmingly approved a shield law in the last Congress, only to see the measure die in the Senate. Champions of the law are guardedly optimistic that they'll finally seal the deal this time around.

They're heartened by the stance of Eric Holder, President Obama's pick to run the Justice Department. Asked at his confirmation hearing whether he supports a shield law for journalists, Holder replied that a "carefully crafted law is appropriate." He added that he would canvass Justice Department staffers on how best to balance protecting confidentiality and safeguarding national security.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press and a tireless champion of the shield law, sees Holder's stance as "a very good sign." So is this, at last, the year? "Call me a dreamer, but I think it will be," Dalglish says. Let's hope so. Because the need for protection is greater than ever.

The big push for the shield law came in the midst of the controversy over who leaked the fact that Valerie Plame, wife of Iraq War arch-critic Joe Wilson, was a CIA agent. Then-New York Times reporter Judith Miller refused to give up the name of her source and ended up spending 85 days in the slammer.

Going to jail to protect a pledge of confidentiality is bad enough. But now those who would have reporters renege on their promises have a far more insidious weapon.

It emerged in the case of Toni Locy, the former USA Today reporter who was ordered by a federal judge to identify the confidential sources who spoke to her about former Army scientist Steven J. Hatfill(see "Hell on Heels," April/May 2008). Hatfill had been named a "person of interest" in the Justice Department's investigation of the anthrax attacks after 9/11. Hatfill, who was never charged, sued the federal government, arguing that officials who had provided his name to reporters had violated the Privacy Act and irreparably harmed his reputation.

When Locy said she couldn't remember which of her many sources had told her about Hatfill, U.S. District Judge Reggie B. Walton asked for the names of all her sources in the anthrax stories. When Locy – quite properly – wouldn't give them up, Walton wasn't amused. He not only held her in contempt, he hit her with stiff and steadily escalating fines – $500 a day the first week, $1,000 a day the following week and $5,000 a day after that. And here's the beauty part: He said she had to pay them with her own money. No help allowed from Gannett, USA Today's parent company.

Obviously, this was a devastating blow. Nobody can pay those kinds of fines on a newspaper salary. Luckily, Locy, who now teaches at Washington and Lee, was spared. An appeals court stayed the order, and the matter became moot when the Hatfill case was settled.

But other people were paying attention. Witness the case of David Ashenfelter. Ashenfelter, a Pulitzer Prize-winning Detroit Free Press reporter, reported in 2004 about a government investigation into possible misconduct by the prosecutor in a Detroit terrorism trial. The Justice Department ultimately asked that the four convictions in the case be overturned – they were – and the prosecutor, Richard Convertino, was removed from his post. Convertino was later acquitted of charges of conspiring to conceal evidence and lying to a federal judge.

The former prosecutor then filed a civil suit contending that the Department of Justice had violated his privacy by revealing information about him to the media. And he subpoenaed Ashenfelter in an effort to find out who his sources were.

The reporter has declined to break his promise, and federal judge Robert H. Cleland has repeatedly ruled against him. The judge has scheduled a hearing on February 11 on whether to hold Ashenfelter in contempt. And Convertino's lawyers know just what they want. Borrowing from Judge Walton's songbook, they want the reporter fined – you guessed it – $500 a day for the first week he won't talk, $1,000 a day for the second week and $5,000 a day thereafter.

Dalglish says it's clear that lawyers will increasingly embrace the fine-the-reporter approach. They realize this could be even more damaging to journalists' families than a stint in jail. And that makes the need for a shield law particularly urgent. "Reporters shouldn't have to consult a bankruptcy lawyer or give up their 401k to protect a source," she says.

While it's fashionable to lambaste the use of confidential sources, there's no doubt that they are often essential in stories about government misconduct, stories that are very much in the public interest. Ashenfelter's "crime," after all, is reporting on conduct that derailed a terrorism case. The public needs to know about that.

And the reporter who brought it to light hardly deserves a trip to the poorhouse.