April 9, 2007 – Page 1026
The media sure could use a good old-fashioned heroic whistleblower right about now. The new Democratic congressional majority is ready to make yet another push for a federal shield to protect reporters from having to unmask their sources. But the drive seems likely to stall out yet again because none of the recent high-profile examples of the press holding hard on to confidences has gained the profession much public or political support.
What the news media needs, if it’s ever to win this protection, is a crusading bureaucrat looking to right wrongs — someone like Daniel Ellsberg, who leaked the Pentagon Papers, which revealed secrets about the run-up to the Vietnam War, or Mark Felt, who was “Deep Throat” during Watergate. Instead, the most publicized cases involving confidential sources recently — the outing of CIA operative Valerie Plame and the federal investigation into steroid use in baseball — have muddied the waters of what should be a noble attempt to shore up the First Amendment.
In the recent cases, “the underlying source or circumstances are unsavory,” said Randall D. Eliason, a former public corruption chief of the U.S. attorney’s office in Washington who now teaches at American University’s law school. “It’s not the classic good-guy whistleblower case that makes all the arguments about serving the public interest.”
Two years ago, it seemed as if Judith Miller, who went to jail for 85 days to protect a source, was an ideal Exhibit A for a shield law campaign. As more information came out, however, she became a less-than-sympathetic figure. Her source, I. Lewis “Scooter” Libby, was convicted of perjury. Her own reporting was proved seriously flawed; she ended up resigning from The New York Times. Last year, two San Francisco Chronicle reporters were threatened with jail unless they revealed the source of leaked secret grand jury testimony about steroids in professional sports. Then, the source proved problematic; he was an attorney for executives of a business at the center of the case who then argued that his clients couldn’t get a fair trial because of all the publicity, which he’d helped generate. Just last week, Josh Wolf was released after a record 226 days in federal prison for refusing to turn over video footage of a California protest. But he’s an independent blogger whose standing as a journalist is subject to its own debate.
The flawed characters, however, haven’t discouraged those pushing for a federal shield law. One of them,
Still, the Bush administration remains opposed and the odds remain long, as they have been since the first federal shield legislation was introduced in the early 1970s. Why? One reason is that such a bill hasn’t ever had united support from one of the constituencies that would benefit — the press itself. Media companies have wanted a total shield, or legal privilege, for reporter-source communication in the belief that any exemption would lead to regulation of news gathering. But an absolute privilege has proved politically infeasible. Measures introduced after Miller went to jail made exceptions for threats to national security and limited the protection to journalists who make money at practicing journalism. That excluded many bloggers.
Lucy Dalglish, the executive director of the Reporter’s Committee for Freedom of the Press, says many heroic journalists have recently fought to protect well-intentioned confidential sources. In 2004, a Rhode Island TV reporter was sentenced to six months of home confinement for refusing to unmask the source of a leaked FBI video that showed an official taking a bribe. The Times’ disclosure of wiretapping by the National Security Agency and The Washington Post’s exposure of the CIA’s secret foreign prisons both relied on unnamed sources. Dalglish said that when she took her job seven years ago, reporters were subpoenaed in federal court about once every other year. By her count, in the past three years more than 45 reporters have been issued federal subpoenas calling on them to reveal sources.
One of the factors that has changed this time around is that big-time news organizations — the Times, the Post, Time magazine and others — are smarting from having paid extraordinary amounts of money to defend reporters who get subpoenaed. And so many of them are now willing to settle for a shield that allows a few exceptions, Dalglish says.
In the end, that may be more important to the fate of the issue than whether any of those recent cases has produced the type of confidential source that could star in a Hollywood movie.
Contributing editor Elizabeth Wasserman is a Washington freelance writer. She can be reached at ewasserman@cq.com.


