A dark day for American journalism

TONY DODERO

Wednesday was a dark day in American journalism, as New York Times

reporter Judith Miller was hauled away to jail for refusing to reveal

a source to federal prosecutors.

It’s a dark day indeed when our government is jailing journalists,

something that is supposed to happen with tyrannical governments,

such as the former Soviet Union, or communist China, or Taliban-led

Afghanistan or Saddam Hussein’s Iraq -- not the United States.

It should not happen in a country that has a 1st Amendment that

states “Congress shall make no law ... abridging the freedom of

speech, or of the press,” which in my humble estimation is one of

cornerstones of our freedom.

It seems that the federal prosecutors and judge who have jailed

Miller are more afraid of those armed with pen and notebook, who

endeavor to provide the public with information it needs to know,

than the real threats to our democracy.

The Miller case involves a criminal investigation into the naming

of a CIA agent, presumably by a high-ranking government official.

Apparently, the judge believes press freedoms should take a back

seat to that criminal investigation, even if the end result is to

cause deep ramifications to the news-gathering process itself.

Here at the Daily Pilot, even our young reporting staff will feel

a chilling effect from this ruling. We are not immune from attorneys

asking us to be eyewitnesses or to reveal sources.

In fact it just happened a few months ago.

We refused to appear in court and faced a subpoena. We ended up

prevailing in that case.

That’s how it should always be. Sources need to know that we will

hold their identity in confidence, that we won’t turn around and

testify against them. Otherwise they will not be willing to come

forward with information that may be vital to the public trust and in

the public’s interest.

Likewise, reporters may be less likely to offer confidentiality if

they know they have a high likelihood of going to prison if they are

ever asked to reveal a source.

Here is what reporter Judith Miller told judge Thomas Hogan as he

ordered her sent to prison:

“I know that the freest and fairest societies are those with a

free press ... publishing information that the government does not

want to reveal,” she said. Likening the role of the press to that of

U.S. troops fighting in Iraq, she said: “If they [the troops] can do

that, surely I can face prison to defend a free press.”

Hogan and prosecutors clamped down on Miller and Time Magazine

reporter Matthew Cooper, whose source agreed to be revealed Wednesday

sparing him from prison, saying that the press shouldn’t have any

more freedoms than the rest of the population.

But the press isn’t asking for more freedoms, just asking that our

existing freedom in the 1st Amendment to our U.S. Constitution be

honored.

In closing, I’d like to leave you with a statement from Peter

Scheer, executive director of the California First Amendment

Coalition, who notes the historic precedent for source

confidentiality and calls for a federal shield law for reporters:

“Across the land, freedom of the press -- that is, the freedom of

American citizens, through the press, to be kept informed about the

affairs of government -- is under assault. The threat comes not from

the left or the right, from the Administration or Congress, but from

federal judges, prosecutors and litigants who no longer feel

constrained by law, ethics or policy from demanding that journalists

disclose their confidential sources.

“It is estimated that during the past year more than 70

journalists and news organizations have been involved in disputes

with prosecutors and litigants in federal court over access to

unpublished, confidential information. Dozens have received subpoenas

demanding records or testimony; one journalist, Jim Taricani, a

television reporter in Rhode Island, has already served a sentence

for refusing to identify an anonymous source; and at least nine

journalists have been held in contempt and currently face the threat

of imminent incarceration or heavy fines (or both), including New

York Times reporter Judith Miller, who was ordered jailed....

“The threat against the press is not new in American history.

During British colonial rule, writer John Peter Zenger refused to

reveal his sources while serving a sentence for ‘libeling’ the

governor of New York, and Benjamin Franklin declined to name the

confidential sources for stories appearing in his brother’s newspaper

in Philadelphia. What is new is the pervasiveness and intensity of

the threat. We have moved from a climate in which federal courts

were, under a variety of legal theories, protective of reporters’

confidential sources, to a climate in which a wave of federal court

subpoenas now places the independence of the press in jeopardy.

“At stake is the American people’s right to know about the uses

and misuses of power in high places. If journalists cannot promise

confidentiality to a source -- and have that source believe that

his/her identity will never be revealed -- the public will lose news

reports of the greatest importance and consequence for public policy.

These include reporting on corporate malfeasance, national security,

and government corruption -- all subjects for which confidential

sources are not merely desirable, but indispensable.

“The best example in contemporary history is the reporting by

Washington Post reporters Bob Woodward and Carl Bernstein that

uncovered the Watergate scandal. The secrecy surrounding their most

valuable confidential source, FBI official W. Mark Felt (a.k.a ‘Deep

Throat’), lasted more than 30 years and was lifted only recently by

Felt himself.

“The judicial threat is almost uniquely federal. Forty-nine states

and the District of Columbia, through legislation or court decision,

have adopted ‘shield laws’ providing an evidentiary privilege for

reporters -- much like the privileges enjoyed by clergy, lawyers and

psychotherapists -- to keep secret information given them in

confidence. Although some federal judicial circuits also recognize

such a privilege, most do not, and the Supreme Court’s recent

decision not to review a crucial contempt ruling against reporters

Miller and Cooper leaves no room for hope that the federal courts

will, on their own, end the assault on press freedom.

“Accordingly, we look to Congress for action on this urgent

matter. Congress now has before it several bills to establish a

reporter’s evidentiary privilege in federal proceedings. We urge

members of California’s Congressional delegation, Democrats and

Republicans alike, to come together and support the most promising of

these bills. The issue is no longer whether a federal ‘shield law’ is

needed; the issue, rather, is how soon it can be enacted. Freedom of

speech, upon which all our freedoms depend, hangs in the balance.”

* TONY DODERO is the editor. He may be reached at (714) 966-4608

or by e-mail at [email protected].