Congressmen’s letter a refreshing defense of press freedom

Sunday, January 28, 2007

The First Amendment’s guarantee of a free press gained an unexpected note of support recently from an unexpected source: Congress.

The new chairman of the House Judiciary Committee, Rep. John Conyers, D-Mich., and the ranking Republican on the committee, Rep. Tom Davis, R-Va., signed and sent a letter Jan. 18 to U.S. Attorney General Alberto Gonzales, seeking to get the Justice Department to drop efforts to compel two San Francisco Chronicle reporters to identify a source who leaked information about confidential grand jury testimony in a steroid-abuse investigation.

Reporters Mark Fainaru-Wada and Lance Williams have been ordered to serve jail time until they comply with subpoenas demanding they reveal how they received information about the testimony of baseball star Barry Bonds and others. The sentence is stayed until the 9th U.S. Circuit Court of Appeals weighs in.

Ironically, the First Amendment’s 45 words start with a restriction on the letter’s authors: “Congress shall make no law … .” But in this instance, it’s the legislative branch taking up the defense of journalists.

There is legitimate debate among Americans in general, and journalists in particular, about the value and ethics of using confidential sources, both in reporting a story and in writing the story to be published. Many journalists as a matter of principle would rather not use any source they cannot name. And certainly many readers and viewers are suspicious of the use of unnamed sources. What is the motive of the “leaker”? How can the reader evaluate the source’s credibility if no name is attached to the facts disclosed? Some might even ask, “Is there really a source, or is it a reporter’s fiction?”

The Conyers/David letter noted, however, the current controversy goes beyond those questions — and beyond the steroids case and the two reporters involved. It’s just one of many government attempts to compel journalists — in effect — to join the prosecution’s team. Journalists counter that leaks and disclosures are a vital part of the watchdog function of a free press, and they quite often serve to bring to light government activities or policies that the public otherwise would not know.

“Like most Americans, we have watched with great concern as the Department of Justice issued grand jury subpoenas to the reporters and their newspaper to learn the identities of their confidential sources on some of the most significant reporting in the history of professional sports,” Conyers and Davis wrote.

In a further irony, as Conyers disclosed the letter to journalists gathered in Washington, D.C., for a First Amendment meeting, just a few blocks away the trial of former vice-presidential chief of staff “Scooter” Libby was getting under way. It’s the most notorious collision between the news media and Justice officials over unnamed sources involved in news reports about a former CIA operative, Valerie Plame.

A bit of perspective on the issue.

Surveys of journalists in 2005 by the First Amendment Center, the Associated Press and the Associated Press Managing Editors association found that many journalists and newspapers never use anonymous or confidential sources. Many news operations that do use them impose strict limits and detailed procedures.

While the court battles often have involved national-security issues, which raise the stakes in the debate, the San Francisco case involves a sports-related controversy — no security issues involved.

And for decades, an informal agreement expressed in Justice Department policy essentially precluded going after reporters’ sources in most cases. The system appeared to work well, reporters and legal experts have said.

Overuse of unnamed sources has hurt journalism’s credibility, which also has been rocked by high-profile news media plagiarism and reporting errors. It may be that this excess, coupled with a sense that the public has lost confidence in the press, has emboldened prosecutors and defense attorneys to go after journalists and their confidants.

Identifying all news sources as standard policy would provide readers and viewers with names, identification and information to measure both the credibility of the source and the news organization. And it certainly would eliminate most of these confrontations between prosecutors and reporters.

But shouldn’t such a policy come about independently, at each news outlet, as a result of honest and open debate among journalists, not as the result of prolonged government pressure tactics and the real possibility that some reporters could go to prison for months? Once news organizations set their source policy, readers and viewers can make their own choices — sorting out for themselves whom they will trust and when.

As many as 10 journalists may be called to testify in the Libby trial. The San Francisco journalists still may go to jail for up to 18 months. And reporters already have served time in jail or been under house arrest in this latest collision between a free media and the government.

The First Amendment’s guarantee of free-press rights of all Americans should not be on display through the bars of a jail-cell door.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. E-mail:

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