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Source HygieneIf reporters practiced better "source hygiene," maybe they'd face fewer subpoenas.

By Jack ShaferPosted Thursday, April 17, 2008, at 7:00 PM ET

Cracked shield. Media companies are lobbying in favor of a shield lawSubpoena-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"?

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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.

Related in Slate

In 2006, Jack Shafer found Wen Ho Lee getting the last laugh. Earlier this month he published Part 1 and Part 2 of screed against the federal shield law.

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.