A journalist’s home is his prison

From the Winter 2005 issue of The News Media & The Law, page 10.

By Grant Penrod

After 30 years as a television journalist, Jim Taricani is a prisoner in his own home. He can’t phone sources, use the Internet or appear on TV. He can’t leave the house except for medical emergencies or doctor’s appointments. Only from 2 p.m. to 4 p.m., and then again from 6 p.m. to 8 p.m., are visitors allowed.

Taricani’s six-month sentence for refusing to identify a confidential source was designed to mirror conditions in federal prison. His confinement ends in June, but he may petition U.S. District Judge Ernest C. Torres for early release in April. Torres spoke for more than an hour at Taricani’s sentencing and warned him not to try and circumvent the purpose of the home confinement conditions without technically violating them. If he does, Torres said, Taricani could end up behind bars.

At the sentencing, Torres stressed that he wanted the public to understand the real issues in the case, which arose out of the investigation and eventual conviction of various Providence, R.I., city officials, including Mayor Vincent “Buddy” Cianci Jr., in a corruption scandal known as “Operation Plunder Dome.”

Despite a gag order on evidence in the “Plunder Dome” cases, an FBI videotape showing Cianci aide Frank E. Corrente taking a $1,000 cash bribe from an informant was leaked to Taricani. In February 2001, NBC affiliate WJAR television broadcast an excerpt. Airing the tape was not a crime because neither WJAR nor Taricani were involved in the investigation or subject to the court’s order. Taricani refused to reveal the source of the videotape and was found in contempt of court.

“The issues in this case have been obscured and distorted by a number of myths that have been created by spin and media hype,” Torres said during Taricani’s sentencing a few weeks after his conviction.

The judge accused Taricani and his station of airing the leaked tape to boost its ratings, not to uncover corruption. “The first myth is the myth that the promise of confidentiality that was made in this case enabled Mr. Taricani to uncover corruption in City Hall that otherwise would have gone unpunished or the public wouldn’t have known about,” Torres said, noting that the videotape was prosecutorial evidence and would become public at trial. “All that it accomplished besides creating the sad state of affairs in which we find ourselves today, was to provide Mr. Taricani and his station with a scoop during sweeps week.”

The idea that future sources would be deterred if Taricani were forced to testify was the second “myth,” Torres said. “I would say that a reporter should be chilled from violating the law in order to get a story — and I’m not saying that Mr. Taricani did that here — from making ill-advised promises of confidentiality that encourage others to do so, and from aiding and abetting them. The source should be chilled from engaging in that kind of conduct.”

Taricani also was not being punished for just doing his job, Torres said. “A reporter’s job is a very important and honorable job, but it is still a myth unless one defines a reporter’s job by gathering news obtained by others by illegal means.”

“The fourth myth is that every reporter has an absolute right to be the sole arbiter of whether and under what circumstances the identity of the source should remain confidential no matter what the law or the court may say,” Torres said. “So just as I am ill-equipped to gather and report the news, so is an individual reporter ill-equipped to make the ultimate decision as to whether a source is entitled to anonymity, especially where, as here, the source committed a criminal act.”

But the “biggest and most misleading myth of all,” according to Torres, was that ordering Taricani to reveal his source was an assault on the First Amendment. “The First Amendment does not confer on reporters or anyone else the right to violate the law in order to get information that they might consider newsworthy, the right to encourage others to do so, or the right to conceal the identity of a source who committed a criminal act in providing the information by refusing to comply with a lawful court order directing the reporter to identify the source. To suggest that these things are protected by the First Amendment demeans the First Amendment.”

In determining Taricani’s sentence, Torres stressed that the sentence must “reflect the seriousness of offense, promote respect for the law, and deter others from being tempted to engage in similar conduct in the future.” But he also noted that Taricani’s personal life is exemplary — citing his charitable work and spotless criminal record — and calling him “a reporter who I have admired and respected for many years.”

Taricani’s health weighed heavily into Torres’ sentence of home confinement instead of prison. A heart transplant recipient who suffers reduced kidney function, Taricani requires a strict regimen of medication and is unusually susceptible to infection. Torres expressed doubt that even a federal prison with appropriate medical facilities would not endanger Taricani’s health.

Torres also denied special prosecutor Marc DeSisto’s request to make Taricani pay restitution for the costs of the investigation. Torres ordered Taricani’s sentence to begin immediately and he was shuttled home without being able to issue a statement.

“The facts here do not justify punishing a journalist who did nothing illegal in receiving and airing a videotape,” NBC said in a statement.

Taricani’s case began in 2003 when DeSisto subpoenaed him after interviewing nearly 20 potential witnesses over two years in a failed effort to find out who leaked the FBI tape to Taricani.

Taricani refused to identify his source, citing his First Amendment privilege as a journalist not to reveal his confidential sources. Under oath, Taricani asserted that the source provided him with the tape “only upon obtaining my assurance that I would protect the confidentiality of the identity of the source.”

Torres rejected Taricani’s argument and ordered him to testify, expressing doubt over whether a reporter’s privilege would apply in a criminal investigation and holding that if one were to apply, it would only be a qualified privilege that had been overcome by DeSisto. Taricani still refused to reveal his source, and was held in civil contempt last March. Torres imposed a $1,000-a-day fine until Taricani agreed to testify.

The U.S. Court of Appeals in Boston (1st Cir.) stayed the fine during an appeal, but in June affirmed the contempt holding. Taricani decided not to appeal to the U.S. Supreme Court, and in August, Taricani began paying the $1,000-a-day fine, reimbursed to him by NBC.

By November it had become clear to Torres that the fines, which had totaled $85,000, would not compel Taricani to reveal his source. Torres stayed the fines and issued an ultimatum: reveal the source within two weeks or face a trial for criminal contempt of court and a sentence of up to six months in federal prison.

“Before I set the date for your criminal contempt hearing, I want to urge you to reconsider your position. And this may be your last opportunity to do so,” Torres told Taricani from the bench. “It’s still within your power to end this matter by complying with the court’s order and answering the special prosecutor’s questions. If you’re found guilty of criminal contempt, it will no longer be within your power, it will be too late to avoid any penalty by then agreeing to comply with the court order.”

Taricani was tried and convicted of criminal contempt on Nov. 18, and sentencing was scheduled for Dec. 9.

Unexpectedly, DeSisto revealed in a Dec. 1 memorandum to the court that he had uncovered Taricani’s source: Joseph A. Bevilacqua, Jr., a friend of Taricani’s and former defense attorney for Joseph A. Pannone, a Providence tax official among the first to be indicted in the “Plunder Dome” scandal.

DeSisto deduced that Bevilacqua was the source the morning of Taricani’s criminal contempt trial. Taricani had a “chance” encounter that morning with an FBI agent who said he would sign a confidentiality waiver in hopes that Taricani’s source would do the same thing. Taricani told the agent that his source had already signed a waiver, but that he would still not reveal the source’s identity because the waiver might not be voluntary. The only waiver Taricani had been shown was Bevilacqua’s.

DeSisto confronted Taricani with the name of the source before the trial, but Taricani continued to refuse to confirm that Bevilacqua was the source and was convicted.

When confronted by DeSisto on Nov. 23, Bevilacqua admitted to being the source, despite the fact that he had previously denied it under oath. He also denied that he ever asked for confidentiality.

“I am surprised and disappointed by the story Mr. Bevilacqua has provided the Special Prosecutor,” Taricani said in a statement. “I would never have jeopardized my health and reputation, and put my family and my company through this ordeal, if my source had not required a promise of confidentiality.”

At the sentencing hearing, Taricani testified that he began dropping hints to prosecutors that would lead to Bevilacqua’s identity after he learned that Bevilacqua had bragged at a dinner party about being the source, The Associated Press reported, but prosecutors never picked up on Taricani’s hints to question people who attended the dinner party.

Taricani, citing his health problems, concern for his family and a desire to put the matter behind him, announced Dec. 21 that he would not appeal the sentence. Both WJAR and NBC released statements supporting his decision, but reiterating their belief that Taricani was right to try to protect his source’s identity.

According to NBC, a number of factors weighed against the severe punishment and warranted review on appeal: the corrupt government officials involved in the original case were convicted; no claim was ever made by those convicted that the airing of the videotape compromised the trial; by the time of the contempt sentencing, the source had come forward and a civil contempt fine had already been paid.

“Jim’s case underscores the need for Congress to pass a federal shield law to protect journalists from being compelled to reveal their confidential sources,” NBC said. “Without that protection, critical information provided to a reporter from a source — which serves the public’s right to be informed — will be constrained and could ultimately be cut off.” u