(HOST) Commentator Jay Craven has been thinking a lot lately about reporters, freedom of the press and the protection of confidential sources.
(CRAVEN) New York Times reporter Judith Miller is now in jail for refusing to hand over notes that identify confidential sources for an article she researched, but never actually wrote. A grand jury sub- poenaed her in connection with its investigation into who leaked the covert identity of former CIA agent, Valerie Plame.
The media focus has largely centered around the question of whe- ther Bush advisor Karl Rove leaked Plame’s identity to punish her husband, former Iraq ambassador Joseph Wilson, for his charges that the Bush administration exaggerated evidence to make its case for going to war.
This political spin has largely upstaged crucial longer-term First Amendment issues that guarantee that “Congress shall make no law” abridging freedom of the press.
For more than 196 years, American courts respected the right of the press to keep news sources confidential. But in 1972, the Su- preme Court ruled, in a five-four decision, that reporters are not protected and must hand over their notes and sources to grand juries that subpoena them.
The precedent-setting 1972 case was Branzburg v. Hayes. Paul Branzburg was a reporter with the Louisville Courier-Journal, who wrote about the production and marketing of hashish in Kentucky. After the article ran, Branzburg was subpoenaed and asked to identify the drug sellers about whom he wrote. He refused. His case was joined by a Boston television reporter and New York Times writer who produced separate stories on the Black Pan- thers.
Reporters who are forced to reveal and even testify against their own sources will soon find themselves without stories or people willing to share information. By requiring disclosure, the govern- ment can suppress investigation and, with it, the public’s right to know. Whistleblowers who are revealed may also go to jail.
At least 15 reporters have gone to jail since the 1972 Supreme Court ruling. And the number of subpoenas is increasing. Four o- ther journalists have been subpoenaed in other cases, just since the Judith Miller incident.
A chilling effect is also being felt. The Cleveland Plain Dealer re- cently withheld two investigative articles because they included information from leaked documents.
Lawyers enjoy confidentiality with their clients. So do clergy, spouses, psychotherapists and doctors. Forty-nine states also shield reporters, but not the federal government.
Republican Senator Richard Lugar is co-sponsoring new federal “press shield” legislation with Democrat Christopher Dodd. But Attorney General Gonzales opposes it.
Should reporters function as an arm of criminal investigation? Surely, effective reporting helps prosecutors break cases, as it did in the Watergate investigation and others. But if Bernstein and Woodward had to reveal “deep throat”, their story would have died.
The outcome of new proposed legislation will be crucial to the future of a free press. In the meantime, sources will have to trust that reporters will do what Judith Miller did – follow the story wher- ever it leads and be prepared to go to jail rather than betray prom- ised confidentiality.
This is Jay Craven in Peacham.
Filmmaker Jay Craven teaches at Marlboro College and directs Kingdom County Productions. He spoke from our studio at the Fairbanks Museum in St. Johnsbury.