AP News, March 7th, 2007
The CIA leak trial turned a spotlight on the shifting ground rules for reporters and their editors who more than ever must balance their pursuit of the news with a heightened risk of landing in court.
Eve Burton, general counsel of the Hearst Corp., which owns the San Francisco Chronicle and other papers, said editors have had to abandon at least three stories involving government activity in recent months because of a more hostile legal environment.
Consider, too, that White House aide I. Lewis "Scooter" Libby's conviction was based on the testimony of several journalists. The former White House aide was found guilty Tuesday on four felony counts of lying about his role in exposing undercover CIA officer Valerie Plame. He could face up to 25 years in prison.
Burton's company has been hit with 84 subpoenas in the past two years, including two against Chronicle reporters after they published investigative articles about baseball steroid use in the BALCO scandal.
After months of legal battles, that case was resolved after a defense lawyer admitted he was the source of the leak.
Previously, Hearst might have seen only five subpoenas in a two-year period, a jump that Burton blames partly on a Bush administration eager to go after journalists. Hearst has now negotiated with several of its phone companies to be notified if the Justice Department secretly subpoenas their calling records.
"The real losers in this is the public, because they will learn less information about matters of public concern and their government in any time in history," Burton said.
In a time of declining print advertising revenue, newspapers and other media companies are confronting the prospect of million-dollar fines, hefty legal fees and jail time if they resist a subpoena.
Dave Tomlin, assistant general counsel for The Associated Press, said the news organization would take a closer look at its newsgathering policies to account for the growing "everyday reality" in which reporters are forced to testify.
At the same time, he said an effective policy must give flexibility to its reporters and editors.
"We are definitely thinking hard about the topic and listening to what other attorneys and editors have to say, as well as looking closely at the concerns of our newsroom and bureaus," Tomlin said.
"The bedrock principle that I think is important is that there is trust and confidence between editors and reporters, and news companies and their newsrooms," Tomlin said. "These cases shouldn't be allowed to undermine that."
At The New York Times, reporters are asked to consider not storing sensitive notes on company computers and to use disposable phones if necessary to protect a source. Names of unidentified sources must be known to at least one editor, so that reporters "don't make deals that bind their company willy-nilly."
"More and more over time, journalists are going to have to take these kind of small steps to protect themselves," said George Freeman, assistant general counsel for the Times. He described voluntary measures to protect sources in which reporters are increasingly "taking on the characteristics of a drug dealer."
There are limits.
Jane Kirtley, a media ethics professor at the University of Minnesota, said reporters should have leeway to negotiate deals with sources regarding "background" and "off-the-record" discussions _ or risk not getting information at all.
Spelling out explicit terms with sources beforehand could scare off whistleblowers, she said, if reporters are essentially forced to issue a "Miranda warning _ that anything you say I may need to cough up so I won't go to jail."
Media advocates say what may be needed is a federal shield law protecting journalists from disclosing confidential information in court. Thirty-two states and the District of Columbia have such laws, but there is no federal protection.
Until then, reporters will have to find ways to survive, said Roy Peter Clark, a senior scholar at the Poynter Institute, a school and resource center for working journalists.
"However bad we may look on a particular day, once the gears of the sausage machine are revealed, I hope people realize that journalists don't have to be perfect in order to be responsible," he said.
In the Libby case, nearly a dozen of Washington's best-known journalists took the stand during the five-week trial to recount confidential interviews. Most testified unwillingly, under court order. Only 13 media subpoenas had been granted in the previous 15 years involving confidential sources, according to the Justice Department.
Special Prosecutor Patrick Fitzgerald obtained waivers from several government officials that released journalists from their confidentiality promises. This tactic, media advocates say, is coercive and chilling on potential whistleblowers.
After the verdict, Fitzgerald said it was necessary to subpoena journalists because Libby was claiming falsely that he had learned about Plame from reporters. Fitzgerald also suggested that prosecutors would not hesitate to order reporters into court again.
"Questioning reporters should be a last resort in a very unusual case, but what people should realize is that we never take that off the table," he said.
"This was a case where that was appropriate," Fitzgerald said. "Talking to reporters proved a lie."
