Maintaining Confidence

From the Winter 2004 issue of The News Media & The Law, page 21.

By Gregg Leslie

The unusual cases of Wen Ho Lee and Valerie Plame have caused more than a few erstwhile defenders of the First Amendment to switch sides, at least for the moment, and declaim loudly that surely the journalists involved in these incidents must go back on their word and testify against their sources. The promise of confidentiality is made as a bargain to protect those willing to expose the truth, the logic goes, and when sources have arguably used reporters to pursue hidden agendas, there is no longer a duty to protect them.

That reasoning can be tempting to accept. After all, we’re dealing with two sympathetic subjects.

Lee was initially targeted as a spy and held in solitary confinement for nine months before finally being largely cleared, prompting the federal judge who freed him to apologize on behalf of the U.S. government and to state that the Energy and Justice departments “have embarrassed our entire nation and each of us who is a citizen of it.”

And the ability of Plame, a covert CIA operative, to work undercover apparently has been compromised by the revelation of her identity, allegedly by a White House insider who wanted to discredit her husband by showing that he was picked for a CIA fact-finding mission solely because of his wife’s position.

But the argument that the sources who leaked the information to the news media must be revealed ignores the fundamental tenet underlying journalists’ right to be free from the obligation to testify. The reporter’s privilege is based on the proposition that in order for the news media to truly serve as a conduit of information to the people, the acts of gathering, reporting and disseminating the news must be independent of the legal system. The free press has long functioned as a “fourth estate,” a non-governmental player in the system of checks and balances on the powers of government. Interference with this independence will almost always, in some way, affect the free flow of information to the public.

The issue is not what the revealed information would mean to the two immediate cases, but rather what it would mean to the future of newsgathering in Washington, D.C.

Consider the consequences if the six reporters who have been subpoenaed in Lee’s Privacy Act case — a Washington Post reporter was subpoenaed after a federal judge ordered five other journalists must testify — were to breach the promise of confidence. The obvious point is that sources would be less inclined in the future to trust journalists with secrets, for fear that allegations of ulterior motives would end the confidentiality and expose the source not only as the leaker, but now as an insider with an axe to grind.

The response from the fair-weather friends of the First Amendment: The scenario is only true for those who are lying or pushing a hidden agenda, so sources who are truly acting in the public good have nothing to fear. And those who should never have been promised protection will think twice before seeking it.

But again, it’s an argument that doesn’t hold up under closer scrutiny. Imagine the honest insiders deciding whether to talk about information that they think the public needs. Will such sources believe that innocent intent will save them? Or will they worry that any misstep on their part, or unforseen allegations made by those affected by the revelation, could lead to charges of ulterior motives and an “obligation” to give up sources? The chances of the scenario playing out that way may seem minor, but even the thought of such a risk will lead to many lost sources, and a loss of information that should have flowed to the public.

Of course, that argument only applies to those who believe in the right of the news media to use confidential sources. The experiences of the last few years should have convinced most Americans that independent investigation by the news media is an essential tool in getting the truth out of Washington.

The ability to maintain that position rests on the independence of the news media, and by extension the need for freedom from many of the obligations imposed by the judiciary. Even when those obligations are imposed uniformly on others. Even when they seem otherwise reasonable. And even when that means a harder fight for some who rightly feel wronged.