Journalists need a get-out-of-jail-free card
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

Who can blame federal prosecutors for trying to convert journalists into their personal snitches? For the prosecutors, demanding that journalists burn their confidential sources is invariably a winning proposition.

It doesn’t work out that well for journalists — or the public.

Just ask TV newsman Jim Taricani. A special prosecutor ordered the Providence, R.I., journalist to reveal who gave him an FBI video-surveillance tape showing a city official taking a bribe. Taricani refused and earlier this month was convicted of criminal contempt.

So Taricani, who committed no crime, who did not encourage anyone else to commit a crime, and who in fact has made a career out of reporting on crime, corruption and the mob, is going to jail. He’ll find out for how long at his sentencing on Dec. 9.

For however long he’s behind prison walls, of course, his award-winning coverage of crime and corruption won’t be keeping the community informed and prosecutors on their toes.

This would be bad even if it were an isolated incident. Unfortunately, it’s not. At least eight other journalists in three separate federal cases are facing the same chilling prospect.

It’s becoming an increasingly familiar story. When prosecutors challenge reporters to reveal confidential sources, the journalists are confronted with an agonizing decision: abandon a core principle of the First Amendment or risking being hauled into court and thrown into jail.

If reporters give up their sources, or agree to cooperate in any way short of that, they may provide information that will serve as the basis for new subpoenas and demands.

If reporters refuse to give up their sources or to cooperate, the resulting legal battle sidelines reporters covering the cases and saddles their employers with huge costs in time and resources. In the end, they may pay heavy fines and wind up in jail anyway.

Under these circumstances, why would journalists go to such lengths to protect their sources? It’s not all that complicated. Journalists see it as their constitutional duty to provide an other-than-government source of information about matters of public import.

They understand that turning over to prosecutors and courts the names of people they have pledged to protect will dry up valuable sources of information for the public.

More important, if the press comes to be known as an arm of law enforcement, its constitutional role is compromised beyond repair.

Of course, journalists could avoid the whole problem by not using confidential sources. But that would betray their professional responsibility. People with important information about government mistakes, corruption or abuse must trust journalists to protect them from retaliation, to the point of going to jail. If these sources can’t trust the press, then the public — and public officials, as well — will be denied news of importance to good government.

So the question becomes: Why would prosecutors go after journalists when they have at their disposal a large force of investigators armed with badges and guns and an arsenal of legal powers such as subpoenas, warrants, wiretaps and computer tracking technology? Their job is to go after the bad guys, of course. But sometimes they decide it’s more convenient to tap the investigative talents of experienced journalists. There is also the added benefit that when investigations are not going well, prosecuting journalists provides a nice diversion.

At one time, federal prosecutors appeared to try harder to avoid infringing on the First Amendment rights of the press any more than necessary. That deference appears to have disintegrated.

The Justice Department no longer adheres as closely to strict guidelines on interference with the press. It has subpoenaed reporters’ telephone and work records, sometimes without properly notifying the reporters. This has allowed federal officials to paw through all of the journalists’ contacts in addition to the targeted material. The FBI has intercepted reporters’ mail, in one instance holding the contents, a 9-year-old unclassified report, for months and thus delaying an investigative report on the war on terrorism.

In at least two of these incidents, according to John Solomon of the Associated Press, the FBI admitted that one of the goals was to prevent journalists from reporting certain information.

Before this aggressive trend began, when the inevitable conflicts arose between prosecutors pursuing justice and journalists pursuing the public’s right to know, the courts generally could be counted on to help the parties sort it all out, attempting to balance the needs and rights of both.

In recent cases, however, federal judges have been dismissive of journalists’ First Amendment claims and seem to have given short shrift to the idea that it is in both the public’s and the government’s interest to let journalists report with as much latitude as possible.

Unless some balance between these two institutions is restored, more and more of the stories in the morning newspaper or on the nightly news will require a government stamp of approval. One does not have to dislike or distrust government officials to know that this is very bad for a democratic tradition and an open society.

When the press is prevented from independently investigating and reporting directly to the people, without intimidation or interference, the public is denied its proper oversight role as both judge and jury of the law enforcement and judicial systems.

How many journalists have to go to jail before prosecutors, judges and American citizens recognize that public justice and an independent press are not mutually exclusive?