The Washington press corps—yours truly included —shook their defiant keyboards at special prosecutor Patrick Fitzgerald as he served us a buffet of subpoenas in the Valerie Plame investigation. But the truth is, he broke us. Fitzgerald cut early deals with some; beat back Supreme Court appeals by the two reporters who defied him, Matthew Cooper and Judith Miller; and, finally, made 11th- and 12th-hour arrangements with Cooper and Miller after their confidential sources freed them to testify. Even Bob Woodward got a waiver from his source.
Now, I'm not about to cast aspersions upon those who swung early—or late—deals with the prosecutor to avoid jail. But the compromises reporters and publications made in the Plame investigation—and the lack of criticism directed at them by their peers—indicate that in 2005, very few Washington journalists really believe that protecting sources is a paramount and holy duty.
How did we get to this hypocritical juncture where journalistic bluster doesn't match performance? Stephen Bates provides an essential history lesson in his April 2000 monograph, "The Reporter's Privilege, Then and Now."
American reporters have been going to jail to protect their sources since at least 1848, he writes, when Congress jailed John Nugent of the New York Herald for contempt because he wouldn't say who gave him a copy of the draft of a secret treaty with Mexico. The subpoenas journalists faced between 1848 and about 1960 were considered a "sporadic annoyance," as Bates writes, rather than a menace to the press. This came, in part, from the fact that many reporters were largely sympathetic to government interests. Some resisted government demands, but others willingly "provided information to police, prosecutors, and grand juries, often informally and without a subpoena."
Bates quotes former Los Angeles Times media reporter David Shaw, who believed that police reporters were already "half cop," and that "their interests and instincts lay with the police." This overlap wasn't limited to reporters on the police beat. Throughout the 1950s and into the early 1960s, at least 22 American news organizations provided cover for CIA operatives overseas, according to John M. Crewdson and Joseph Treaster's landmark December 1977 New York Times series. The organizations included ABC News, CBS News, the New York Times, Newsweek, Time, the Wall Street Journal, and the Associated Press.
Changing times and professionalization seasoned the relationship between press and state with much-needed antagonism. The college graduates arriving in newsrooms were more skeptical about authority, and more willing to challenge it. The revolutionary political movements of the 1960s, the riots and the demonstrations, were easier for reporters to penetrate in many cases than police, Bates reports. Prosecutors, lusting for the evidence contained in tape-recorded interviews, newsreel footage, and notebooks, hoped to harvest material with subpoenas, but many new-breed reporters resisted.
"In the first 20 months of the Nixon administration, CBS and NBC were served with more than 120 subpoenas, nearly half of them issued by attorneys for the government," Bates writes. Reporters viewed the storm of subpoenas as part of a conscious Nixon administration plot to neuter the fourth estate. Alarms rang at the Columbia Journalism Review, which alerted its readers in the early 1970s that a "subpoena epidemic" threatened to turn the press into a "de facto arm of the Attorney General's office."
In 1970, the Department of Justice responded to critics by establishing guidelines (updated here) that made it difficult but by no means impossible for federal prosecutors to subpoena reporters. The ultimate decision whether to subpoena or not rests in the hands of the attorney general, making the guidelines only as good as the AG who oversaw them.
The issue of whether reporters enjoyed a legal privilege to bat subpoenas down was settled by the Supreme Court's 1972 decision in Branzburg v. Hayes, which ruled against such a privilege. But, as Bates writes, lower courts found wiggle room in the "ambiguities" presented by Justice Lewis F. Powell Jr.'s "unorthodox concurring opinion." The press exploited this, and the Supreme Court ignored the mess it had made, neglecting to correct lower courts that invoked Powell to find "qualified privilege" for journalists who wanted to quash subpoenas. Since Branzburg, no Supreme Court has revisited the issue at all; the court declined to hear Cooper and Miller's appeals.
Since Branzburg, a press-state stalemate has ensued. The Reporters Committee for Freedom of the Press counted only 17 journalists who landed in jail for refusing to testify between 1984 and 1998, Bates writes, but none of the reporters spent more than a month. Nine spent less than a day. The greatest deterrent against reporter subpoenas was, as Bates quotes former Attorney General Dick Thornburgh as saying, that most prosecutors "don't want to get the media mad. …"