The U.S. Supreme Court is likely to get another controversial issue dropped in its lap shortly. There's every indication that the nation's highest court will be asked to determine if reporters can honor their promises to confidential sources to keep their identity secret or if prosecutors can require journalists to disclose those names.
As Arthur Sulzberger Jr., publisher of the New York Times, has said, "What's at stake here is journalism at the grass-roots level." A federal judge in New York noted the importance of protecting confidentiality, citing its role in the probes of the Watergate, Iran-Contra, Monica Lewinsky and Abu Ghraib scandals.
The reporters involved in those cases, Judge Robert Sweet said, rely "upon the promise of confidentiality to gather information." Without the protection of confidentiality granted to sources, many of these investigations may never have come to fruition.
Sweet issued an order that protects journalists from having to reveal their confidential sources. In February, a three-judge panel of the U.S. Court of Appeals took an opposite stand. It ordered two reporters jailed for up to 18 months for failing to reveal their sources in the same case. The judicial panel found no justification for protection of a reporter's confidentiality pledges to a source.
Judge Thomas Hogan, chief judge of the Federal District Court in Washington, in ordering the reporters jailed, said a 1972 Supreme Court decision did not provide reporters with First Amendment protection when grand juries sought their sources.
Given the contrary rulings of the two courts, Hogan suggested that he expected the Supreme Court to put the case on its docket. The Supreme Court frequently will accept cases to resolve conflicts among federal appeals courts. An attorney for the reporters and 25 news organizations backing their refusal to testify said the case has nationwide implications, and it seems like an ideal case for the court to take. Currently, 30 states have so-called shield laws that, among other provisions, protect the confidentiality that reporters have agreed to with their sources. The other states do not have such protections, and even existing shield laws are not uniform.
A measure introduced in February would establish a greatly needed federal shield law that would provide national standards and spells out what federal officials would have to prove before they could justify subpoenas to mandate testimony from reporters who have pledged confidentiality to their sources.
Surprisingly, the sponsor of the measure is Rep. Mike Pence, R-Ind., chairman of the conservative caucus in the House. So far he has attracted only 17 co-sponsors for his bill, eight Republicans and nine Democrats. Another Indiana Republican, Sen. Richard Lugar, has introduced the measure in the Senate and has four Republicans and one Democrat as co-sponsors.
Pence, a pragmatist, said his bill represents his conservative view that federal power needs to be limited. "I really believe," he said, "the only check on government power is a free and independent press." That is a refreshing stance from a conservative congressman.
"This is the kind of issue that will take a great deal more public attention for it to reach critical mass in Congress," Pence said. More support for his measure will hopefully be forthcoming. Pence's conservative credentials should help in garnering support from the more conservative congressmen.
One of the key elements in most state shield laws mandates that prosecutors seeking disclosure from reporters about their sources must guarantee that they could not get the information they seek in any other manner. It is a provision that should be in any federal shield law and would be helpful in gaining the support of conservatives. It would also fend off fishing expeditions by legislators only interested in publicity.
Murray B. Light is the former editor of The Buffalo News.