Magazine article Editor & Publisher

Reporters Face Jail, Fines, Dates in Court

Magazine article Editor & Publisher

Reporters Face Jail, Fines, Dates in Court

Article excerpt

OK, people! Let's be calm. We have a little problem. Actually, it's a big problem. But we can handle it. Can't we?

That seems to be the collective discussion/uncertainty among newspaper industry leaders over what to do about the unprecedented string of subpoenas and other federal inquiries into confidential sources during the past several months. From Washington, D.C., to San Francisco, the attack on the coveted reporter's privilege is reaching unprecedented heights.

"It has changed with a velocity that would make your head spin faster than Linda Blair in The Exorcist," exclaimed Bruce Sanford, a noted media attorney who spoke during a panel on First Amendment issues at the Society of Professional Journalists convention in September. Adds Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, "It is the worst it has ever been."

But while news outlets scramble to counter the recent wave with appeals and motions to quash, the broader question of how to stem this tide of pressure on the press before it kills anonymous sourcing completely is not easily answered. Some want a federal shield law, while others claim a U.S. Supreme Court ruling is the answer. Still others push for the industry to police itself more strictly on anonymous sourcing.

"We need to persuade people that without reporters' privilege, sources, and whistleblowers who are critical of government who need anonymity to do their jobs will not be heard from," argues George Freeman, an attorney with The New York Times, which has received several subpoenas for reporter testimony and records in the last few months. "This justice department is certainly not respectful of, or an ally of, the media."

Right now, three ongoing federal cases have sought information from journalists about confidential sources, with all three making specific requests since early August.

The most prominent is the special prosecutor probe into who leaked the identity of CIA officer Valerie Plame, which has sparked subpoenas for testimony from Tim Russert of NBC, Matthew Cooper of Time magazine, Walter Pincus of The Washington Post, and Judith Miller of The New York Times.

Pincus, who gave a deposition on this matter on Sept. 15, also is among six reporters -- including two New York Times staffers -- ordered to reveal sources in the Wen Ho Lee case, a privacy rights lawsuit brought by Lee, a former Los Alamos scientist, against the federal government. A federal judge in August found five of the reporters, but not Pincus, in contempt of court and ordered them to pay a $500-per-day fine, but stayed the fine pending appeal. (Pincus faces the same contempt charge in an upcoming hearing.)

Finally, the BALCO investigation, in which federal officials are looking into the possible illegal distribution of steroids by a Bay Area business owner, has prompted the U.S. Attorney in San Francisco to seek confidential sources and records from three San Francisco Chronicle reporters and two from the San Jose Mercury News. At least two other cases, involving non-daily newspaper reporters in Minnesota and Rhode Island, have prompted fines, with the Rhode Island case still ongoing.

"It is more than a blip," says Freeman, who stresses that the recent actions constitute a definite change in the federal approach. …

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