The American news media came out of the Lewis Libby trial looking like the clown over the carnival dunk tank: subject not only to general derision but routine abuse. Reporters who thought they had the privilege of keeping their sources secret, no matter what, found they were living in a fool’s paradise. Special counsel Patrick Fitzgerald forced testimony by one reporter after another — including Judith Miller, formerly of The New York Times, who had spent 85 days in jail resisting his demands.
This spectacle induced the news media and its supporters to set a new Guinness world record for crying wolf. "A calamity," was the judgment of one journalism professor, Edward Wasserman of Washington and Lee University. Earlier, Bill Keller, editor of The New York Times, reached a grim conclusion: "Had they labored in the current climate of mistrust and hostility, the founding fathers might not have dared to enact a First Amendment."
Had they heard from Bill Keller, the founders certainly might have reconsidered. What no one seems to have noticed is that plenty of juicy scoops, such as the National Security Agency’s secret electronic surveillance program, have appeared since Fitzgerald established that anonymous sources may not be anonymous when it counts. Nor has anyone noticed that plenty of hard-hitting investigative journalism goes on in those states that decline to give reporters an absolute privilege not to testify.
The fact that the press exaggerated the danger, however, doesn’t mean it’s imaginary. Leaks sometimes provide information about activities that are of great importance to the public, but which elected officials and other people would dearly love to keep secret. If prosecutors start rounding up reporters anytime they might get something useful out of them, some sources will dry up, to the detriment of all.
Even the Justice Department acknowledges as much. Its guidelines stipulate that "the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public policy issues." Patrick Fitzgerald apparently agrees. After the Libby trial was over, he said, "Resorting to questioning reporters should be a last resort in the very unusual case."
In this investigation, he felt compelled to question journalists because it was the only way to determine who had leaked the name of CIA agent Valerie Plame, which might have been punishable under federal law. Once he charged Libby with perjury, it was the only way to show how the defendant had tried to cover up the truth.
Administration allies see the prosecution as unmitigated folly, since it ignored the original alleged crime. But most people would agree that in the leak of some secrets with grave implications — say, troop movements in a war zone — the leaker should not be able to hide behind a journalist’s promise of confidentiality. Then, reporters should expect to have to turn over evidence, even at the price of unmasking a source.
As Fitzgerald noted, it’s only in rare cases that such subpoenas are justified. But under federal law, about the only restraint on prosecutors is self-restraint. Though 49 states have given journalists some protection against being forced to testify, reporters have no statutory exemption at the federal level.
When Republicans controlled Congress, they showed amazingly little interest in shielding the press from overzealous prosecutors. Having seen the consequences for one of their own in the Libby case, they may have a new appreciation of the need for limits. That might be fine with Democrats, some of whom were pushing such legislation even before they regained power.
Establishing the contours of a sound law is not hard. It would mandate that reporters don’t have to testify unless the information they have is essential to a case and prosecutors have exhausted all other means of getting it. And as federal appeals court Judge David Tatel suggested in upholding the Judith Miller subpoena, courts should not compel such testimony when the value of the leaked information is greater than the possible harm it could do.
Leak the Pentagon Papers? Your secret is safe. Unmask an American spy? Get ready for your close-up.
Passing a limited reporters shield law may sound like rewarding the news media for overreacting. But it’s worth remembering what happened to the boy who cried wolf. In the end, the wolf came, and it devoured his sheep.