Anonymous sources in journalism are a problem any way you look at it. Recall that during the Monica Lewinsky scandal, for example, unnamed sources were held up by most major news organizations to peddle malicious fantasies and exaggerations that were rarely checked out before being broadcast to the world. As I noted in What Liberal Media?, 81 percent of the statements made on NBC News, for example, were based on anonymous sources in the early days of the scandal. I remember sitting in an MSNBC studio where the executive in charge instructed the host to go with a story that later turned out to be false because, he said, it was already "out there."
Despite this potential for abuse, if we are to have a free country and free press, anonymous sources require legal protection. Journalists sometimes rely on highly placed sources in government or the corporate world to blow the whistle or uncover wrongdoing—most famously during Watergate, but also in tens of thousands of stories from the local level up to national affairs. These sources must be able to remain anonymous, lest potential retribution prevent them from ever coming forward with the truth about the abuse of power.
Some sort of "shield law" or other judicial rulings that protect the relationship between a reporter and his or her source is in operation in every state but Wyoming. These laws prevent government officials from compelling journalists to reveal their sources. This is a privilege granted to journalists because of the fundamental role they play in ensuring the successful operation of our democracy. As Justice William O. Douglas once wrote, "the press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class but to bring to fulfillment the public’s right to know." This protection offered to journalists is not unlike the confidentiality privilege already afforded doctors and therapists.
But these rulings only apply to those individual state courts. There are no such protections at the federal level. The Supreme Court has dealt with the issue of journalistic privilege at the federal level before. In the 1972 Branzburg vs. Hayes case, a Kentucky reporter wrote a story about the drug hashish, and agreed to protect the identity of two users he described in his piece. Upon publication, he was subpoenaed to reveal who the hashish users were, and refused. The Supreme Court rejected the premise that a "reporter’s privilege" was protected by the First Amendment.
But Justice Lewis Powell, in a concurring opinion, did elaborate some—he described a qualified privilege for reporters. "The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.
The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions," he wrote.
Different judges have interpreted these guidelines in varying ways ever since, although in recent years some judges have become discouraged by the looseness of the guidelines—leading, as President of the Society for Professional Journalists Irwin Gratz writes, "to the increased likelihood that prosecutors would subpoena reporters."
Given this uncertainty on the judicial level, the necessity for legal protection for journalists and their sources is common sense. But, of course, constructing such protections is not, as Powell noted, without complications.
First off, where would its limits be? What if a reporter has information that is necessary to prevent an imminent act of violence? What if the reporter witnesses a crime: Other citizens would be compelled to testify—why not the journalist? A federal law would likely codify exactly what exceptions exist in such cases, and give judges much-needed guidelines.
Another complication lies in the difficulty in deciding who, exactly, would be covered by the law. Surely, a reporter for The New York Times would be protected. But what about a freelance reporter? What if his or her income is mostly from another job, but they earn extra money doing reporting? Are they a journalist and under protection of such a law? And what about bloggers?
Many prominent journalists argue for the protection of independent journalists and bloggers, too. Judith Miller, formerly of The New York Times, said recently that "it would be crazy" for bloggers not to be protected by a shield law: "I think it’s pretty clear that the intention of our Founding Fathers was to protect the lonely pamphleteer."
Miller—who spent time in jail herself for failing to reveal sources in the Valerie Plame case—has actually been quite vocal on the issue of a shield law, which is a bit problematic. Or, as Arianna Huffington wrote, "having Judy Miller be the face of such laws is like having Amy Winehouse doing PSAs for the Partnership for a Drug Free America."
(The complications of the Plame scandal need not detain us here, but Miller’s case remains problematic because when her source, Scooter Libby, leaked information to her, that act itself may have been criminal as defined by the Intelligence Identities Protection Act.)
In the end, it’s clear that reporters don’t belong in jail for doing their job. And a society with no protection for whistleblowers is one in which criminals are invited to abuse the rest of us with the functional equivalent of immunity from the scrutiny of a democratic society.
Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College, and a professor of journalism at the CUNY Graduate School of Journalism. His blog, "Altercation," appears at http://www.mediamatters.org/altercation. His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America was recently published by Viking.
George Zornick is a New York-based writer.