No Secrets Anymore?
— Why Congress Turned Sour
— A Key to Protecting Public’s Right to Know
— How Responsible Journalists Use Unnamed Sources
It seemed like such a sure thing, a snap.
As the new decade began, Congress considered a major new power for journalists … it began moving federal media shield legislation that would protect them from being forced to reveal their confidential sources in court. Many states already have such shields.
But now, the media shield bill is comatose. Even the Democratic-controlled House and Senate friendly to the press failed to pass it and currently, with Republicans controlling the House and having ascended in the Senate, the bill doesn’t even have a sponsor.
What happened? Why the sudden turnaround?
“I think all the uproar over leaks, especially WikiLeaks, has dampened some enthusiasm,” says longtime investigative reporter Wendell Cochran, a journalism professor at American University.
She says the bill started losing support even before the Republican resurgence. “As a candidate, President Obama supported it but he changed his mind in office after conferring with Attorney General Eric Holder.”
She points out that “two other key supporters of the bill were the late Ted Kennedy and Arlen Specter of PA who lost his re-election bid as a Democrat.”
Jack Lessenberry, a journalism lecturer at Wayne State University, says “there’s always a lot of pressure not to have a shield bill and presidents, like President Obama, come in with the best of intentions, then various lobbyists get to work and now the thing is stymied. I’m afraid, given the composition of Congress and the likely composition of Congress after 2012, it’s unlikely to happen under President Obama.
“We have a situation, of course, where 49 of the 50 states have shield laws, but once again, we’re being stymied in a quest for a federal shield law. Often, presidential candidates think this is a great idea until they actually become president and can envision a situation where they might not want journalists to have that protection.”
To Roger Plothow, editor and publisher of the Post Register in Idaho Falls, Idaho, the problem can be easily summed up in the new climate: “Politically, there’s little to gain for elected officials to get behind a shield law and much to be gained, it appears, by being hostile to the media.”
Ironically, the drive for the bill had come just as the mainstream media have been declining precipitously in readership and finances, are at an all-time low in public believability as measured by academic research, and have relatively few ace investigative reporters left who would avail themselves of a media shield law.
“Too many journalists today are still in denial about how they are perceived by most of the public,” says John Hamer, executive director of the Washington (State) News Council, which hears complaints by the public about the media.
“They think they deserve special protections and special treatment because they are doing such an important job. They proclaim that their motives are noble and pure, that they defend the ‘people’s right to know,’ that they ‘comfort the afflicted and afflict the comfortable,’ and that they ‘speak truth to power.’ They don’t realize that many citizens mistrust the press as much or more than they do other major institutions.”
How does an ethical journalist use confidential sources, and when? Stephen J. Farnsworth, an assistant professor of communication at George Mason University, used to be a local government reporter with the Kansas City Star and Times.
“I routinely used confidential sources as part of my information-gathering process,” he says. “But they weren’t always used in the story itself. I always tried to find an on-the-record source or official documents whenever possible to quote in a story that may have started with a tip from a confidential insider, but that was not always possible.”
Farnsworth says “the biggest problems for me with on-the-record sources involved getting information about public employee misconduct. Since many of these cases involved potential criminal activity … stealing, bribery and so on … by city and county workers, investigators and other city officials were not willing to speak for attribution. So I used unnamed sources in such circumstances. The public had a right to know, but even when I used unnamed sources I tried to provide at least some detail … ‘law enforcement sources,’ ‘city investigators’ or something like that to give people at least a sense of where the information came from.
“I always worried about the paper’s credibility, and nothing helps a paper’s credibility more than the use of named sources whenever possible. So for me the use of unnamed sources as attributions in stories was not common, maybe a few times a year.”
Another journalist who frequently wrestled with such questions was Lawrence Meyer, who spent 32 years as a reporter and editor with the Washington Post.
“Any information that comes anonymously needs to be checked, and checked sufficiently to be certain that the information is accurate,” he says.
“Verifying the accuracy of information isn’t enough, though. The motivation of the tipster needs to be determined whenever possible to make sure that the tip and the information are complete so that the full context of the situation being reported is considered.
“In a situation where national security is involved, the government should be consulted to at least hear what issues it considers important. The news organization then should make its own decision about whether or not to publish.”
Meyer helped cover the Watergate scandal of the 1970s, when the Woodward & Bernstein investigative stories in the Post were based on a high-placed confidential source famously dubbed Deep Throat. That’s when the issue of anonymous sources and protection for them first gained prominence … and it’s been a subject of interest in the journalistic community ever since.
Reasons why We Need the Shield
The American Society of Newspaper Editors lobbied hard for this legislation.
Martin Kaiser, former president of the ASNE and editor of the Milwaukee Journal, believes the main benefit would be “the creation of a legal protection for journalists that currently does not exist. While this is not a perfect bill, it will provide protection for journalists subpoenaed to testify in a federal proceeding. Recent federal case law indicates that the journalist has no choice but to testify or go to jail (or face significant, often personal, fines). The Free Flow of Information Act will make things, in a word: better.”
Prof. Mary Alice Molgard, who teaches communications at the College of Saint Rose, notes that “reporting on issues of public importance is vital in communities both large and small. Sources put themselves at risk if they expose a wrong (loss of job, influence, prestige, family complications) without the promise of confidentiality. Sources also don’t have means to reach a wide audience, and therefore need the media to do it for them. The shield enables the reporter to credibly inform the public. Without it, the story doesn’t get told, and the public is at a disadvantage.”
She also points out that “news organizations all across the country are afraid of doing controversial stories. Lawsuits are expensive, in financial terms, in terms of time and energy. Local television almost never does investigative reporting any more; newspapers are reluctant but still do some stories. However, if cutbacks and layoffs continue, the numbers of such stories will dwindle. Business managers will not spend limited resources on potentially difficult stories requiring confidentiality and lawyers.”
Matt Duffy was a Georgia State University Ph.D. student who wrote his thesis on confidential sources and has a website on this topic … http://www.anonymoussources.org. Now he teaches journalism at Zayed University in Abu Dhabi.
“Nobody wants to live in a country where the government can coerce the press into divulging where it gathers its information,” he says. “The press needs to act as a watchdog to the government and may not be able to do that job properly if reporters are worried about going to jail because they refuse to divulge their sources. The fundamental mission of the shield law is to prevent the government from infringing upon the press’ First Amendment right to report the news in an unfettered manner.”
To Prof. Farnsworth, “The pros outweigh the cons by a huge margin. I’m much more worried about the chilling effect of the status quo on public disclosure than the negative things that might result with such a law. Quality of journalism seems likely to suffer without more protection for journalists. As it stands now, government officials can pressure reporters and jail them if they don’t get the information the government feels entitled to obtain. In these difficult financial times for the media business, only the richest media companies can afford to face the legal challenges. So, many good stories might not get the green light, or they might get watered down. The public’s right to know can suffer.”
Prof. Hickerson: “As long as journalists have to worry about recrimination for publishing certain information, there will probably be a chilling effect whereby journalists will be less inclined to pursue stories that could embarrass the government. This chilling effect interferes with the press’ functions to tell the truth, check on government and serve the public.”
John Hamer feels “it is valuable to have protections for confidential sources of important information that the public deserves and needs to know, IF those sources are genuinely in jeopardy of serious repercussions such as job loss or demotion, financial harm or physical threat.”
Reasons to Question Having a Shield
“I’ve never favored a federal media shield law and don’t see the need for one,” says Roger Plothlow.
“Too many journalists have been too quick to resort to the use of anonymous sources, and this is the origin of much of our trouble. Shield laws often serve to set the public against us and are among the reasons we’re seen as arrogant and indifferent to issues of broad interests.”
Like any other privilege or “right,” it can be abused.
“The danger is that confidential sources may have ulterior motives that are not apparent or revealed to journalists who are seeking a ‘good story’ and often hoping to win journalism prizes,” Hamer says.
“Some sources may manipulate journalists and use them for their own purposes. Too many journalists are naive or inexperienced and easily manipulated. With the declining number of experienced editors and the deadline pressures of online media, this problem is exacerbated.
“Journalists can be easily misled by sources with ulterior motives. Witness the CBS Dan Rather/Mary Mapes stories about George W. Bush. Witness the New York Times stories about John McCain’s supposed affair with a lobbyist. Journalists need to be much more skeptical of confidential sources’ motives … and even consider laying out those motives in public. In retrospect, even ‘Deep Throat’ (Mark Felt) had ulterior motives because he had been passed over to head the FBI after J. Edgar Hoover’s death. Should the Washington Post have told its readers that fact? Would it have made readers think any differently about the Watergate stories?”
Matt Duffy says that “anyone can pick up a New York Times or Washington Post every day and read confidential information. Given this environment, it seems information is flowing pretty well without extra protection for journalists. I think a federal shield law would give journalists tacit approval to use more unnamed sources in their reports. I think that method of reporting is already overused.”
Prof. Farnsworth: “Confidential sources shouldn’t be a way for partisans to wage political attacks without being named or held accountable for their remarks. I worry that there is too much of that in Washington reporting.”
Prof. Molgard: “A federal shield law is only of major importance to the media. It is not understood or considered important by the general public. The public already has a strong negative perception of reporters and the shield law may be seen as a way to avoid accountability.”
The other commonly cited problem is just who gets covered by this protection … and just who is a “journalist.”
“A federal shield law would create the de facto licensing of journalists,” says Duffy. “If journalists have special protection under the shield law, then the federal government must decide whether the person in question is a journalist so they know whether they can legally demand to know where information originated. In this fast-changing media environment, I’m not sure I want the federal government determining who counts as a journalist and who doesn’t.”
Prof. Shyles says, “The biggest disadvantage of the bill, and this debate has a long history, is that the press can surrender to the government the definition of who is and who is not a legitimate reporter or journalist, and this gets into the whole licensing debate.”
Martin Kaiser: “There is always a danger in letting a government entity of any type define who is and who is not a ‘journalist.’ ” He says the definition should be the simplest one … that of whoever carries out “the act of gathering information with the intent to transform that information for public dissemination.”