Subpoena-defying reporters who dare judges to send them to prison are routinely portrayed in the press as First Amendment martyrs. This should come as no surprise. The guys writing the lionizing stories generally share their subjects' values. What else are they going to write, "Send the bum to jail"?
Although I have great admiration for some journalists who have held themselves above the law and committed acts of civil disobedience that have earned them a ticket to jail, not all subpoenas are created equal. And not every source arrangement outside of "on the record" should require conscionable reporters to go directly to jail if slapped with a subpoena.
Some reporters invite subpoenas by practicing what I call "poor source hygiene," granting confidentiality too liberally to sources who don't deserve it. Norman Pearlstine, former editor-in-chief of Time Inc., addresses this topic in his 2007 book about the Valerie Plame investigation, Off the Record: The Press, the Government, and the War Over Anonymous Sources. As the top editorial guy at Time Inc., Pearlstine was the one who gave the court notes that revealed Time magazine reporter Matthew Cooper's confidential sources.
Pearlstine writes that at the beginning of the case, he assumed that "long-standing rules for the press when dealing with sources and the public" existed. But no!
In truth, there are no rules, and there is no common understanding of what qualifies as proper behavior. Ask a group of reporters or editors to tell you the difference between "confidential" and "anonymous," or between "not for attribution," "background," "deep background," and "off the record," and you will get a lot of different answers. As screenwriter William Goldman once said of Hollywood, "Nobody knows anything."
After spending millions from the Time Inc. kitty to quash the Cooper subpoena, Pearlstine ultimately decided that Karl Rove had not "demanded the confidentiality that Matt had unilaterally and, therefore, improperly granted him. By my reasoning, Rove was an anonymous source at best."
Pearlstine's view put him in opposition to Cooper, Cooper's bureau chief, Cooper's managing editor, and Time's in-house First Amendment lawyer, all of whom "viewed Rove as a confidential source."
(Cooper took a very different view of the whole episode in this 2007 Portfolio feature.)
I dredge up the Plame case not to second-guess anybody at this late date but to illustrate the haziness of many of the sourcing relationships reporters enter. After the cows escaped, Pearlstine closed the barn door with editorial guidelines for Time Inc. that weren't completed until shortly after he left the company in 2006. Both Pearlstine's book and his personal Web site contain editorial guidelines based on the ones produced for Time Inc.
Pearlstine writes that the ground rules between reporters and sources should be explicitly stated or understood. Reporters should exercise self-discipline by getting sources on the record as often as possible. A promise to withhold a source's name is not automatically the same thing as a promise of confidentiality, which represents a higher commitment from the reporter and his publication.
Confidentiality should generally be doled out sparingly, he writes, "reserved for sources who are providing information that is important and in the public interest, and who, by doing so, are risking their lives, jobs, or reputations" and should not be granted without pre-publication approval of the editor-in-chief. Pearlstine's guidelines continue:
Reporters and editors should understand that they have no legal or moral right to promise confidentiality to a source beyond what is recognized in the law. … If a journalist expressly promises more than the law allows, the promise is legally ineffective, like any other promise that is contrary to public policy. A journalist who knowingly deceives a source by promising more than the law authorizes should be subject to professional discipline and civil liability to the source.
Had former USA Today reporter Toni Locy practiced better source hygiene, would she be in the fix she is today? Locy faces contempt charges for refusing to surrender to a federal court confidential sources who spoke to her about the 2001 anthrax attacks and Steven J. Hatfill. Hatfill is suing the government under the Privacy Act, saying that the anonymous FBI and Department of Justice sources damaged him with hundreds of leaks to the press and that his only path to justice is access to Locy's sources.
I don't want to be Locy's jailer, but the press owes Hatfill and its readers explanations for its coverage in the anthrax stories. Pearlstine's rule that confidentiality should generally be granted to sources who provide important information at some personal risk wasn't followed. Locy and other reporters published anonymous government leaks that have damaged the life of a seemingly innocent man. Hatfill's lawyers insist—with some justification—that in the Hatfill case confidentiality arrangements have helped to hide government wrongdoing, not expose it. (A similar observation can be made of press conduct in the Wen Ho Lee case.)
Editorials about Locy's legal dilemma tend to follow the absolutist view about confidential sources. For example, the March 24 Washington Posteditorializes, "Reporters rely on regular confidential sources to burrow into their beats; if they can be arbitrarily required to identify all their sources, it's likely they won't have any." The editorial makes no mention of how the press allowed itself to be used.
Confidentiality isn't so sacred to the press that leading news organizations and reporters won't jettison those revered sources when it suits them. Press scholar Stephen Bates writes (PDF) that after Oliver North blamed others for his own leak in 1987, Newsweek identified him as the source. After a source on a Russian money-laundering story misled the New York Times in 2000, the paper dropped a dime on him. The Boston Globe put off-the-record comments made by President Jimmy Carter on the record after he covered some of the topics in his memoir. And after William Casey died, Bob Woodward outed him as a source. More recently, Woodward exposed Mark Felt as Deep Throat after Vanity Fairgot the story through Felt's family.
Both the Post editorial and the Reporters Committee for Freedom of the Press conclude that the fix for the Locy mess is the pending federal shield law. No doubt if a storm of asteroids was falling toward Earth, the Post and the RCFP would use the occasion to call for passage of a shield law. Self-scrutiny has never been the press corps' leading virtue, and its ability to imagine itself the victim is nonpareil.
Maybe they should let Bruce Willis rewrite the shield law. Send suggestions to email@example.com. (E-mail may be quoted by name in "The Fray," Slate's readers' forum, in a future article, or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)