3 San Francisco reporters latest to feel confidentiality heat

Friday, August 20, 2004

More news reporters have been asked to reveal confidential sources as a trend of challenges to the press’s unfettered newsgathering rights continued.

In San Francisco, it was reported that three reporters from the San Francisco Chronicle received letters in late July from the local U.S. attorney's office seeking documents confidential sources gave them for ongoing stories.

Editor & Publisher said the U.S. attorney's demand for documents and sourcing information pertained to the newspaper’s coverage of the federal BALCO steroid investigation. San Francisco Giants slugger Barry Bonds is among a number of sports figures who have been the subject of stories about investigations into the taking of performance-boosting supplements from BALCO.

”One of the (U.S. attorney) letters was received by reporter Henry Lee on July 28, while the other went to reporters Lance Williams and Mark Fainaru-Wada on July 29. The paper responded with letters denying the requests on Aug. 2 and Aug. 5,” E&P reported.

“As you know, the Justice Department has been aggressively pursuing journalists on the confidential source issue in a number of cases,” Chronicle Editor Phil Bronstein wrote in a staff memo.

In an interview, he said the newspaper would not give the government any information obtained confidentially.

Courts are posing a serious threat to agreements between reporters and their sources who provide valuable information in exchange for confidentiality, news organizations say.

Three times this summer, judges have held journalists in contempt of court for refusing to name their anonymous sources. Press advocates fear the rulings are the start of a dangerous trend.

Reporters have long argued that the Constitution's guarantee of a free press shields them from being forced to disclose what they have learned in confidence.

“Journalists and other citizens also should be concerned that this increased challenge to the ability of a free press to do its job is coming in and through the courts, which among the three branches of government historically has been the most consistent protector of First Amendment rights,” said Gene Policinski, acting director of the First Amendment Center.

People on both sides of the issue say legal precedents journalists have relied on may be shaky, principally a concurring 1972 opinion by Supreme Court Justice Lewis Powell in Branzburg v. Hayes that said journalists can avoid testifying about confidential or unpublished material unless the information is central to the case and cannot be obtained elsewhere.

“There seems to be more willingness on the part of judiciary to limit press freedoms,” said Nathan Siegel, an attorney for the Associated Press.

Prosecutors contend journalists shouldn't assume they will get special treatment, saying reporters are simply being asked to do what other people are asked to do (but often don’t): Give information to help prosecutors and plaintiffs discover the truth.

Since 1984, a total of 14 journalists have been jailed — some for only a few hours — for refusing to comply with court orders demanding that they reveal sources or other information, according to the Reporters Committee for Freedom of the Press. The spate of cases this year, though, represents a spike, advocates said.

Press advocates also express concern about court rulings that restrict media coverage of high-profile trials, including those of basketball star Kobe Bryant and former investment banker Frank Quattrone.

Seven journalists involved in three cases have been fined or ordered jailed for refusing to identify their sources. Specifically:

  • In Providence, R.I., a federal court began collecting a fine of $1,000 per day last week after a reporter for the NBC station, WJAR-TV, refused to obey a court order to disclose the source of a secret FBI tape made during a corruption investigation. A station spokeswoman, Clare Eckert, would not say who was paying the fine, and said no appeal is planned for fear it would not succeed.

  • In Washington, a federal judge held five journalists in contempt on Aug. 18 for refusing to reveal sources who gave them information about Wen Ho Lee, a scientist who was once suspected of spying. The judge fined each of them $500 per day, a punishment put on hold pending appeals from the news organizations including the AP, The New York Times and the Los Angeles Times. An ABC News reporter, Pierre Thomas, who worked for CNN when the stories were reported, is also appealing.

  • Last week, another federal judge held Time magazine reporter Matthew Cooper in contempt and ordered him jailed. Prosecutors also have subpoenaed at least three other journalists as they try to figure out who leaked the name of a covert CIA agent. Cooper remains free pending appeal.

    A critical mass of cases may force a re-examination of the law, press advocates say.

    The national journalists involved in these cases will not “be intimidated into revealing their confidential sources,” said Lucy Dalglish, executive director of the reporters' committee. “I think we're setting up a real showdown here.”

    She and others contend the issue is ripe for action by the Supreme Court or Congress. But there are perils with each route: The court could impose stricter limits on the press, or Congress could write a law that news organizations don't like.

    Typically, it has been easier for journalists to avoid testifying in civil cases, such as Lee's, than in criminal cases, like the CIA leak.

    Prosecutors say they try to avoid calling journalists to testify, but sometimes they must.

    “The question for a prosecutor is, ‘You know where the information lies, you know who has it. Can we get to it?'” said Roscoe C. Howard Jr., a former U.S. attorney for the District of Columbia, now in private practice.

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