To shield or not to shield

(See correction: Reporters' shield)

While there are reasons both pro and con
as to whether a federal reporter’s shield law
should be enacted by Congress as advocated
in an editorial appearing in today’s Erie
Times-News, the cons far outweigh the pros.
Nothing in the editorial makes the case for
such a law. Au contraire.

The editorial cites as one example in favor of
a shield law the Watergate scandal of the
early 1970s which led to President Richard
Nixon’s resignation.

But the two famous reporters who broke
the stories on the scandal, Bob Woodward
and Carl Bernstein, based on information
provided them by a confidential source,
would not have been aided by a shield law
because they did not know the identity
of their prime source, known only as “Deep
Throat.”

Therefore, neither they nor their source
needed protection of a law barring a court
order forcing them to reveal the identity of
their source or be thrust into jail unless and
until they did. Strike one.

In another famous case cited by the editorial,
the Pentagon Papers, no confidential sources
were involved who could be threatened by
prosecutorial retaliation. There were several
parties involved in outing the Pentagon Papers,
including then-U.S. Senator, Mike Gravel, a
Democrat of Alaska, now a symbolic candidate
for the Democratic presidential nomination.

Protected by legislative immunity. Gravel (pro-
nounced gra-VELL), simply read the papers aloud
and verbatim in a public setting.

The principal legal issue involved in that contretemps
was whether the U.S. Justice Department could
exercise prior restraint by ordering the New York
Times and, as I recall, the Washington Post,
to refrain from publishing the Pentagon Papers,
first in their newspapers, and later in
hastily published paperback volumes for sale
in retail outlets. Both published the documents
in full with impunity. Strike two.

In the third case cited by the editorial, Judith
Miller of the New York Times was jailed not
because she refused to reveal the identity of
a source, but because she refused to testify before
a federal criminal grand jury, and was jailed
for criminal contempt. In fact, the source
of the information the federal prosecutor
sought from Miller, Scooter Libby, Vice President
Dick Cheney’s chief of staff, had signed a
waiver releasing her and other journalists
from their pledge of confidentiality.

But Miller, for reasons known only to her,
refused to accept its validity on grounds
that it was “coerced,” and continued to
refuse to testify, for which she was jailed. It
was actually Syndicated Columnist Robert
Kovak who identified Victoria Plame as a U.S.
covert agent, based on non-privileged infor-
mation he said he obtained from Libby, not
Miller, and he was unscathed by the revelation.

Libby, of course, was tried and convicted,not
for leaking classified information, but for lying
under oath that he had not leaked it (perjury)
and obstructing justice. Strike three.

Hence, none of the cases cited by the
Times-News editorial makes the case in
favor of a federal reporters’ shield law.

The main problem with a shield law is that it
protects unethical as well as ethical reporters.
With a shield law in force, an unethical reporter
can fabricate stories at will based on non-
existent sources, secure in the knowledge that
he or she couldn’t be threatened with the
prospect of criminal prosecution for refusing
to divulge them.

In more than 40 years as an investigative
journalist, I have often pledged anonymity
to sources, sometimes in cases where
a breach of confidentiality could endanger
a source’s life, limb, livelihood or family. But
I’ve never been in a position where I had
to reveal a source to whom I had pledged
confidentiality or face imprisonment. There
are techniques for eluding that quandary
in many, if not all cases.

The three sponsors of a proposed shield law in
the U.S. Senate, Spector, Lugar and Schumer
singled out by the editorial are among the
sharpest parlimentary and political heads
within that august body. They are baldly playing
to the press with the full knowledge that a
majority of their colleagues in both chambers
won't support an effective shield law.

If they thought for a minute one might actually
be enacted, they'd back off in a heartbeat. If
one should pass, it would be loaded with
exceptions and loopholes that would make the
status quo infinitely more to be desired.

Reporters have to make a choice. Either they
pledge anonymity to a source or they don’t.
If they do, they must be resigned to suffer
the consequences, if any. It’s their job. It’s as
simple as that.