Paper: We Need Anonymous Sources

My third paper written in college; this was meant to be a comprehensive research paper. It actually ended up sucking pretty badly in terms of writing, but if you can look past the bad writing and the argumentative properties (I am arguing one side of it, after all), it serves as a decent introduction to the legal status of anonymous sources today. (Also, reading at least part of the court opinions and the decisions in the Judith Plame case are highly recommended.)

Why We Need Anonymous Sources

Journalists are considered the ultimate check on our government. They courageously uncover and report on governmental abuses and stories of great public importance. The information they provide has toppled administrations and shown the public the sorts of crimes we commit in the name of peace. One of their most important tools is the anonymous source; the whistle blower who is unwilling to speak on the record for fear of losing a job or breaking an unjust law. These sources have been instrumental in most of the journalistic coups of the last half-century, and it is clear that the entire country, through journalists, has come to depend on them. Given this state of affairs, it is certainly worrisome, indeed even frightening, to see journalists jailed or fined for keeping confidential sources confidential. Yet, while often unreported in the mainstream press, this sort of thing happens far too often. We depend on journalists to bring us critical stories and keep the government (our representative to the world) honest, and journalists depend on their anonymous sources to tell these stories. An anonymous source by its very nature is worthless once exposed, and to protect the liberties and principles our country holds dear we need journalists to continue functioning. To help in that fight, we should both expect and encourage journalists to seek out information from sources who may refuse to speak on the record. Inevitably, any argument for the use of anonymous sources depends on proving their benefit. Carl Bernstein & Bob Woodward's Watergate investigation relied on one such source: Deep Throat, now known to be former FBI associate director Mark Felt (Halloran), was crucial to the Watergate investigation, yet his anonymity survived thirty years and a Congressional investigation into the Watergate scandal. Without Deep Throat the true extent of the Watergate conspiracy would never have been uncovered; though Woodward & Bernstein's reporting was rampant with unidentified sources of all kinds, each of the few times their story was wrong it was their fault rather than their sources'. More recently, The New Yorker reported in May 2004 (about a week after CBS' 60 Minutes 2 broadcast some images) that an Army investigation into the Abu Ghraib prison in Iraq had found mounds of evidence on ethical and legal violations (Hersh). The article provided, in stunning detail, the records of an “Article 32 hearing” (essentially a precursor to court-martial) and the evidence found by the investigation. The scandal provoked a huge outcry from both the world community and the United States; in conjunction with troubles at Guantanamo Bay, this scandal has resulted in a recently-passed Senate bill that stringently defines torture and forces the United States to adhere to the same regulations outside our borders as we do within them, regardless of whether the prisoner is a citizen of the United States. (Kiely) These important (and hitherto presumed unnecessary) measures would never have occurred without the bravery of an anonymous source. Other stories of successful and appropriate employment of anonymous sources abound. Laura Handman lists several of interest in her essay ”Protection of Confidential Sources: A Moral, Legal, and Civic Duty.” The “Pentagon Papers”, a series of secret military documents that showed how the government knew that the military had been failing in Vietnam for years, were published only because an anonymous source was willing to commit a felony. Anonymous sources were also instrumental for reporters in a number of other stories, like those on the infamous Iran-Contra deal, the FBI's Surreptitious Entry Program (“routinely” used to break into private residences), the Anita Hill sexual-harassment case that nearly kept Clarence Thomas off the Supreme Court and increased awareness of sexual harassment, and a series of Pulitzer Prize-winning stories that exposed corrupt practices in fertility clinics (Handman 375). Jonathan Alter put the case for anonymous sources well, writing in a follow-up to Newsweek's infamous Guantanamo Bay abuse story (alleging [apparently incorrectly] that guards had flushed a Quran down the toilet):

Confidential sources have been instrumental in breaking almost all of the landmark stories of the past half century, from the secret history of the Vietnam War (the Pentagon Papers) to Watergate and the Clinton-Lewinsky scandal (uncovered by the same Michael Isikoff now pilloried by the right); from the lies of the tobacco and nuclear industries (Karen Silkwood was one such source) to the truth about Enron. After 9/11, the American public first learned that Osama bin Laden was the culprit through confidential sources. Without leaks, readers and viewers would not have known that the FBI failed to connect the dots or that Al Qaeda was still recruiting within the United States or that reports of weapons of mass destruction in Iraq were false. Every day, anonymous sources help the media sort out which government agencies and businesses are telling the truth and which are not. (Alter 38.)

Given all of this, it is difficult to argue that the dangers of anonymous sources, or the missteps of reporters in utilizing them, can outweigh the good they have done our country in these and other cases. While the government does not directly discourage the use of anonymous sources through legislation, it indirectly discourages their use through criminal investigations. While reporters can almost never be jailed for printing what they have heard, their sources can be jailed for illegally disclosing information. This leads to an ability to indirectly pressure reporters by requiring them to testify about how they obtained their information; testifying in such a case would be a compromise of the reporter's professional integrity, but even though many believe the First Amendment protects a “journalistic privilege,” refusing to testify can land a reporter in jail for contempt of court, a la the Valerie Plame leak: In a complicated and very political mess, several reporters at various news organizations were made aware that Valerie Plame, wife of Joseph Wilson, worked at the CIA. Because Mrs. Plame was technically a covert operative, any individual who learned her identity utilizing security clearance, and then identified her (or, technically, revealed her name) had committed a felony. The situation was further complicated because Joseph Wilson, an outspoken critic of the Bush Administration and the intelligence which led the USA into war with Iraq, had published an inflammatory editorial attempting to discredit some key intelligence. (McCollam 31-32) Two of the reporters who learned Mrs. Plame's identity (Matthew Cooper and Judith Miller; Miller never actually wrote about the discovery) refused to testify about their source in the grand jury investigation that followed, and were ordered jailed for contempt of court. (Zelnick 541-46) [Cooper later avoided jail by testifying after he received permission from his source; Miller stayed in jail for some 80 days before receiving similar assurances and a limit in the scope of her testimony.] (Madore) In plenty of other cases, journalists are witnesses to some commonplace crime exclusively because of their profession, making the question of whether they can be forced to testify even more one of the First Amendment, as in the only Supreme Court case on reporter's privilege before Cooper and Miller's appeal. Branzburg vs. Hayes was a consolidated case of three journalists who had been subpoenaed for their knowledge of criminal acts and refused to testify. Paul Branzburg had witnessed two men preparing $5000 worth of hash in the course of writing a story on hippies; Earl Caldwell was a journalist trusted by the Black Panthers and allowed to witness their private conversations; Paul Pappas was allowed into Black Panther headquarters in New Bedford, Massachusetts in order to write a story on an expected police raid that never came. Each of them refused to testify when subpoenaed, and their appeal eventually went before the Supreme Court, which “resolved” the issue by delivering one of its most confusing decisions (Kenworthy). In its decision on Branzburg v. Hayes the court split 5-4 in favor of requiring the reporters to testify. The dissenting opinion found a protection in the First Amendment, and outlined a “balancing test” that, despite its minority viewpoint in the original case, has become working precedent in the lower courts: “the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information (“Branzburg vs Hayes”).” Even one of the concurring judges, Justice Powell, wrote a secondary opinion in which he worried about the possibility that special prosecutors could make the media into “an investigative arm of the government;” he said both that he could see a journalistic privilege developing in the future and that the government should not use the power of subpoenas to harass journalists; indeed, his opinion all but advises journalists to request that a judge quash every subpoena they receive. And though the Supreme Court may not recognize a journalistic privilege against testimony about anonymous sources, it does recognize the right of an anonymous source to remain such. In 1982 Dan Cohen was an adviser to a Republican gubernatorial candidate in Minnesota who approached two reporters and offered to give them court records on the Democratic candidate, on the condition that Cohen himself be granted anonymity. The two reporters agreed, but the editors of their respective papers (the St. Paul Pioneer Press Dispatch and the Minneapolis Star & Tribune) decided to name Cohen in the resulting stories. After losing his job, Cohen sued the publishers and won many hundred thousands of dollars in damages (“Cohen vs. Cowles Media Co”). Wending its way up through the courts on appeals from both parties, the total award to Cohen was reduced (as it had initially included punitive damages, which a later court ruled were not legal) and then removed by the Minnesota State Supreme Court. The Supreme Court of the United States disagreed, and, in another 5-4 decision, ruled that Cohen could sue for the damages under breach of contract (“Cohen vs. Cowles Media Co”). While the likelihood of a court ruling that damages could be awarded to a source revealed under subpoena is small, the precedents set by this case and Branzburg seem too contradictory to each be held. Such cases are certainly enough to give pause to any reporter wishing to utilize a confidential source with important information. Given the conflicts among these many cases, it seems clear that the Supreme Court should rule on a new case clarifying the reporter's privilege and responsibility with regard to confidential sources. And there is plenty of previously uncovered ground on which to stand. For instance, pastors, therapists, and lawyers all have privilege in court; none may be required to provide incriminating testimony on their client or penitent and some are prohibited from doing so by law. All of these examples of court privilege work directly for the client, often against the good of society, because people who know the truth about a crime aren't allowed to share it. Against this we have a journalistic privilege, which would protect leakers — but in important leak cases the source has usually provided a service to our country. So journalistic privilege would be a direct benefit to society, rather than an impediment as in the case of these other privileges. Moreover, journalists are recognized as being in a legal relationship with their source (as shown by Cohen; remember, he won damages for breach of contract) and as having a responsibility towards the source, similar in many ways to that of a lawyer or a therapist: the source, like a client, provides secret information to the journalist, may expect that the information be held confidential unless permission is given to the contrary, and may sue within the legal system if that confidentiality is broken. Considering these arguments for a journalistic privilege, the conflicts between some of the Supreme Court journalistic privilege cases, and the state support of reporter's privilege — there are now 31 states that now have shield laws of their own, 18 others that have court precedents creating some level of journalistic privilege (McCollam 33), and a Justice Department policy limiting when its lawyers should subpoena reporters (Handman 586) — it seems the common law reporter's privilege has evolved to the point where it may be recognized by the Supreme Court even if it does not reside strictly in the First Amendment (though clearly a strong case may be made that it does). And in view of the arguments presented here, it seems proper to rule on the side of anonymity. But to decry the absence of such a ruling incorrectly implies not only that the Supreme Court alone can protect our rights, but also that journalists and justice must work in opposition. In sharp contrast to subpoena cases like the Valerie Plame leak or Branzburg, some investigators have obtained valuable knowledge from journalists working in the same area. Woodward & Bernstein's Watergate investigation is one such example. Readers of All the President's Men are often left with the impression that Woodward & Bernstein did more to uncover criminal conduct than the Justice Department and the grand jury combined, and that Woodward & Bernstein's reporting was responsible for uncovering evidence that Watergate was part of a larger conspiracy rather than a single incident. The Ransom Center, which now owns all of Woodward & Bernstein's Watergate notes, began opening them in February 2005, and Professor David Greenberg of Rutgers University recently spent some time with the previously private files (Greenberg 51-52). He says

Consider the notes of an interview Woodward conducted with Sam Ervin on January 22, 1973, just after the North Carolina senator had been named to head the newly created Watergate Committee. At the time, the view that Watergate did not extend into the White House upper reaches, and that the burglars acted on their own, held sway. But Woodward and Bernstein reported the existence of a wider campaign of White House illegality. The interview notes show that Ervin was eager to learn the reporters' sources, indicating his interest in investigating beyond the boundaries the FBI had placed on his inquiry. “Want list of witnesses to subpoena,” Woodward recorded Ervin saying, suggesting that he wanted to follow up on the Post's discover of a broader White House conspiracy ... Ervin had apparently concluded that the official inquiries thus far had been inadequate, but that by pursuing Woodstein's [Woodstein is a combination of Woodward and Bernstein's last names first coined by their editor Ben Bradlee] leads, he might further unravel the Watergate mystery. He did.(52)

Such events as that described here provide a strong argument that prosecutors would be better-served by being friendly towards the press than intimidating them (intentionally or not) through subpoena. Journalists perform services essential to this country, and anonymous sources help them in their task. Journalists and their anonymous sources act as a watchdog on both our government and corporations. They expose criminal conspiracies and give us windows into otherwise ignored areas of life. The relationship between journalist and source is important to each professionally and personally, and it is important to us societally. Unfortunately, pressure on journalists who make use of anonymous sources is becoming ever more common. If the Supreme Court will not provide the protection necessary, the people must do so through their representatives and pass a federal “shield law” preventing reporters from being required to testify about their sources. Sources:

• Alter, Jonathan. “A Big Source of Frustration.” Newsweek. May 30, 2005: 38.
• Bernstein, Carl, & Bob Woodward. All the President's Men. 2nd ed. New York: Simon & Schuster, 1994.
• “Branzburg vs. Hayes, 408 U.S. 665 (1972).” Findlaw. 29 June 1972. Acc 14 Nov 2005. http://laws.findlaw.com/us/408/665.html.
• “Cohen vs. Cowles Media Co., 501 U.S. 663 (1991).” Findlaw. 24 June 1991. Acc 15 Nov 2005. http://laws.findlaw.com/us/501/663.htm
• Greenberg, David. “Beyond Deep Throat.” Columbia Journalism Review. 44.3 (2005): 51-53.
• Halloran, Liz. “Out of the Shadows.” U.S. News & World Report. June 13, 2005: 26.
• Handman, Laura. “Protection of Confidential Sources: A Moral, Legal, and Civic Duty.” Notre Dame Journal of Law, Ethics, & Public Policy. 19.2 (2005): 575-588.
• Hersh, Seymour M. “Torture at Abu Ghraib.” The New Yorker. May 10, 2004: 42.
• Kenworthy, Bill. “Branzburg vs. Hayes (1972).” Sheridan Con-Law. 12 July 2005. Acc 14 Nov. 2005. http://www.typepad.com/t/trackback/2810254
• Kiely, Kathy & Diamond, John. “Fight over abuse law pits Bush against party allies.” USA Today. 10 November 2005: 11A.
• Madore, James T. “Freed, Reporter Testifies.” Newsday. 1 Oct 2005: A07
• McCollam, Douglas. “Why the Plame case is so scary: Attack at the Source.” Columbia Journalism Review. 43.6 (2005): 29-37.
• Zelnick, Robert. “Journalists and Confidential Sources.” Notre Dame Journal of Law, Ethics & Public Policy. 19.2 2005: 541-52.