The Reporter’s Privilege Essay Example for Free

The Reporter’s Privilege Essay For the last 34 years, over a thousand subpoenas were served to reporters of various news media organizations in the United States compelling them to testify and reveal their sources in all kinds of court cases. In 1999 alone, there were 1,326 subpoenas delivered to 440 news outlets according to the Reporters Committee for Freedom of the Press (RCFP). This epidemic has threatened to destroy the freedom of the press, which is protected under the First Amendment of the U.S. Constitution. The source possesses valuable information and is the lifeblood of newsgathering. There will be no story without the source. Professional ethics demands that journalists should safeguard their sources even if it means facing jail terms and always keep the promise of confidentiality they make to the source. The American Society of Newspaper Editors Statement of Principles, Article VI states that â€Å"Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly. On the other hand, the Radio-Television News Directors Association Code of Ethics and Professional Conduct cite that â€Å"Journalists should keep all commitments to protect a confidential source†. Therefore, it is imperative that journalists should not be forced to disclose their sources because it would undermine their constitutional function to inform the people and even destroy the American free press philosophy that the public has the right to know. Subpoenaing a journalist threatens to transform the independent press into an investigative arm of the government; it silences potential confidential sources, which reduces the flow of information to the citizenry; and it thereby violates the First Amendment. (Bates, 2000, p. 4,  ¶2). If it will give meaning to the First Amendment and the freedom of the press, then the reporter’s privilege must be kept sacred. RCFP Executive Director Lucy Daglish, in an interview with Newsweek in 2004, said that democracy operates because the media provides information to the citizenry. Columbia Journalism Review Executive Director Mike Hoyt describes the press as the oxygen of democracy. However, today’s trends of attacking the source seem unlikely when journalists are getting drowned in a sea of subpoenas and face a ritual of jailing. The courts have been contesting the reporter’s privilege in over 100 years but the press continues to withstand the test of time whether in the court rooms or in the corridors of power. When the government subpoenas journalists in criminal cases, additional concerns are raised. The media is said to serve many functions critical to a democracy. Among these are the tasks of informing the public, serving as watchdogs by checking government abuse, and holding individuals in a position to affect the public interest accountable for their actions. To fulfill these functions, journalists must remain independent of government. Subpoenas naturally reduce this independence, thus undermining the medias function in a democracy. (Schmid, 2002, Proponents Of the Journalists Privilege,  ¶4). Court Rulings. Unlike the attorney-client, doctor-patient, spousal, and therapist privileges, the judicial system still does not recognize the reporter’s privilege. A number of cases have already challenged and continue to challenge this controversial privilege resulting in high profile landmarks of court rulings. The first Supreme Court case that answered whether the First Amendment protects journalists from not revealing their source was the Branzburg versus Hayes in 1972. In 1969, Paul Branzburg of the Louisville Courrier-Journal wrote an article about the views of hippies and their plan to produce and sell marijuana. He used fictitious names to protect the identities of his source. He was subpoenaed to testify in a state grand jury that was investigating a local drug trade. He refused to name the men who were in possession of marijuana and was held in contempt. Not worried he wrote another expose detailing a pot session in Frankfort, Kentucky. He was brought back before a grand jury and asked to describe the criminal acts he had observed but he refused to testify. The case went on for two years that ended up with a Supreme Court ruling. In a 5-4 decision, the court did not recognize such privilege saying that the First Amendment does not protect journalists from not revealing their sources. The Court declared that journalists, like most citizens, must respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial. (Schmid, Supreme Court Precedent,  ¶2). In the course of news gathering, the reporter becomes an eyewitness to a crime, he or she is liable to testify before a grand jury. Branzburg was sentenced to six months in jail. But in a short concurrence by Justice Lewis Powell, he hoped that in the future the law might give way to a court-recognized privilege. In his argument Justice Potter Stewart gave a three-way test for qualified privilege: that a reporter possesses information relevant to the crime, that there is no other way to get the information and that there is a convincing and prevailing interest in the information. The court left the issue to congress whether to enact laws that would protect reporters from not testifying. As a result of Justices Powell and Stewart arguments that in one way or the other the press has some protection under the First Amendment shield laws were instituted by various states. Currently there are 31 states including the District of Columbia that institute this law. The law however varies in detail and scope according to state laws and has specific limits. Generally, only journalists working full-time in a recognized media organizations are covered and not freelancers or book writers. There are certain events that journalists are excluded from covering. Another threat to press freedom is the case of Judith Miller of the New York Times. After a series of court battles in 2004, Miller spent 85 days in prison for not divulging her source on the Palme leak. The case originated when Valerie Palme wife of a former ambassador Joseph Wilson was named in a series of articles revealing her true identity as a CIA agent. Her name was leaked by an official of President George Bush’s administration to the media. The leakage was considered a criminal offense. Under the Intelligence Identities Protection Act, a person who learns the identity of a covert agent like Plame from classified information can get ten years in jail for intentionally disclosing the agent’s identity. (McCollam, 2005, Out of Africa,  ¶3). Many reporters were subpoenaed including Miller. Refusing to testify she was found in contempt. She invoked her First Amendment right but was denied. She was only released when the source voluntary waived his right to confidentiality and came out. It was learned that Scooter Libby, the chief of staff of Vice President Dick Cheney, was the source of the leakage. There are so many other similar cases that hound American press freedom like James Taricani who served six months of house arrest in Rhode Island. In Washington five reporters were in contempt for the stories about nuclear scientist Wen Ho Lee named by the press as the source of giving secrets to the Chinese. Vanessa Leggett went to jail for 168 days rather than giving up her source of information while writing a book about a Houston murder. She was only released when the term of her appearance before a grand jury expired. These reporters are fighting for a principle that is sanctified by the constitution. Keeping the source is essential for public trust and to serve the interest of the people. Breaking that trust would only kill the foundation of press freedom and its purpose. Disclosing the whistle blowers would endanger lives in acts of retaliation against them especially from the government. The relationship of journalists to their sources comprises one of the most criticalyet perplexingareas of reporting. Without sources, there would be no stories. The better the source, the better the story. (Willis, 1990, p. 75). The Role of the Press. Since the beginning of the press in 1690 in Boston, Massachusetts, it has grown dramatically through time. In a democratic form of government the press is indeed necessary as Thomas Jefferson once said â€Å"The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.† To serve as check and balance, the constitution created three branches of government, the executive, legislative, and judiciary. However, these branches have now been infected with all sorts of corruptions and abuse of power. Thus the fourth estate was born, the press, to make sure democracy operates as it was envisioned by the founding fathers. In its early stage, the American press was used for propaganda by those who owned it. It was a lapdog that reported only what the publisher wants and solicits advertisements. What made it an instrument of democracy were the many voices that shaped opinion and caused freedom to fly across the country and the whole world. It has become the guardian of U.S. democracy. Today, it takes the role as the watchdog of government investigating anomalies making sure that officials do not violate the rights of the citizenry and become more transparent instead of operating in secrecy. Without the press, we would not have discovered the cheating activities of President Richard Nixon in the Watergate scandal or President Bush’s misleading tactics to justify the invasion of Iraq. Besides of informing, the press also educates, reforms, entertains, and incites. Far from its origins, the press today carries no ideology and not connected with any political party or government agency. At the turn of century, advocacy moved from news stories to editorial pages, where it has since stayed. News reporters of the twentieth-century claim to be politically detached and objective, unlike journalists of the previous era. To modern journalists, objective means an allegiance to the nonpartisan pursuit of factual accuracy. (Soley, 1992, p. 16). Despite criticisms, the press maintains its objectivity as the number guideline in reporting. The Project for Excellence in Journalism identified major trends in the press’ reporting style. The Journalism of Verification is the traditional style wherein reporters must substantiate their facts to come up with an accurate story. Then there is the Journalism of Affirmation where a reporter delivers the news with a point of view. In making its works more professional and transparent, the press empowers the public in judging the stories whether to believe it or not. From watchdog now comes the guide dog concept called civic journalism that focused on the role of the press in building communities. This brand of journalism challenges people to take part in resolving community problems. It aims to educate citizens about issues and current events so they can make civic decisions, engage in civic dialogue and action, and, generally, exercise their responsibilities in a democracy. (Schaffer, 2001,  ¶25). It reinforces the watchdog role but it does not tell how the public should think or act. This journalism delivers news that help communities cope up with difficult issues concerning their everyday life. The model serves as an alternative style that hopes to address the shortcomings of the press. The Code of Ethics. Journalists are guided by the code of ethics to ensure professional integrity and credibility in enlightening the citizenry. Different news organizations have their own ethics and standards but maintain common elements such as objectivity, accuracy, and confidentiality of sources. In its 50-page report in 1947, A Free and Responsible Press, the Hutchins Commission laid out the goals of journalistic performance. The report was written by eminent scholars and authors under Robert M. Hutchins, president of the Chicago University and has served as the basis of journalistic practices today. The Hutchins Commission identified five responsibilities, the fulfillment of which could serve as a measure of press performance. The press should (1) provide â€Å"a truthful, comprehensive, and intelligent account of the days events in a context which gives them meaning, †a commitment evidenced in part by â€Å"objective reporting†; (2) be â€Å"a forum for the exchange of comment and criticism,† meaning in part that papers should be â€Å"common carriers† of public discussion, at least in the limited sense of carrying views contrary to their own; (3) project â€Å"a representative picture of the constituent groups in the society†; (4) â€Å"present and clarify the goals and values of the society†; and (5) provide â€Å"full access to the days intelligence, †thereby serving the publics right to be informed. (Baker, 2001, p. 154). The Society of Professional Journalists urged its members to always seek the truth by being honest, fair, and report the information rightly. A reporter must be accountable to the public about his news stories. He must act independently by being free from other interests other than serving the public’s right to know. He should minimize harm in treating sources. In pursuit of gathering data, the reporter must show compassion by being sensitive to sources that are negatively affected by the coverage. The journalist must recognize that in news gathering he or she can cause harm or discomfort to the source. Arrogance must not be displayed while collecting data and must be cautious in identifying juvenile suspects or victims of sex crimes. Sources must be treated fairly and professionally without inquiring pointlessly about their personal life nor threaten them if they do not cooperate. Reporters should always introduce themselves truthfully while interviewing their sources and not carry false identity just to get the information. Importantly, when the source wants to remain unknown, the journalist must respect that trust of confidentiality. The San Francisco Chronicles code offers one of the clearest treatments on the always-thorny matter of dealing with sources that want confidentiality. It reads in part: A reporter who pledges confidentiality to a source must not violate that pledge. If the reporter is asked by an editor for the identity of a source, the reporter should advise the source of the editors request. If the source wishes to withhold his or her identity from the editor, then the reporter and editor must decide whether or not to use the information even though the sources identity remains known only to the reporter. (Steele Black, 2001, Sources and Reporters). The Need for Shield Law. Notwithstanding the important function of the press in defending democracy, there are no sufficient laws in protecting its existence. All sectors of society especially the government depend on the press for timely information in order to make policies. In its 2005 annual report for press freedom rankings, the United States placed 44th falling 20 places from the previous years all because of the Miller case and the legal tactics that attack the privacy of journalistic sources. This is ironic since the country is the champion of democracy the world over. News organizations are now uniting forces to seek legislative action. However, several proposed bills have already been sent to congress but unfortunately no actions have been taken yet. Since Branzburg some 100 federal statutes have been introduced but failed to pass. The Free Flow of Information Act of 2005 is presently pending in the senate and congress. This act is in response to the jailing of Judith Miller. The legislation would prevent government officials from compelling a reporter to reveal a source unless it was determined by clear and convincing evidence that disclosure of the identity of the person is necessary to prevent imminent and actual harm to national security. (Durity, 2000,  ¶34). A federal shield law is important to safeguard the reporter in the performance of his/her duty. The move is for the federal government to recognize state’s interest in protecting the secrecy of sources and that no party may force a journalist to reveal his/her source or notes by suing the reporter in federal court. This poses dilemma for reporters whether to violate a court order and face jail or break the promise of source confidentiality and face public distrust. Subpoenas are burdensome to journalists because it consumes so much time and disrupts their work. A law could provide reporters for motion to quash subpoenas except when there is prevailing evidence that such information is really necessary and when there is no other way to obtain the information. The trend of compelling reporters to identify their sources has sent fears that the American free press is under attack and being used by the government in investigating its own deficiency particularly the leakage of classified documents. When the government fails to resolves its own problems, it may be tempted to enlist reporters in criminal acts as an easy way out. With an existing law, prosecutors and criminals defendants may seek other means or conduct investigations in acquiring information rather than depend on journalists by attacking their sources. Failing to define who qualifies as a journalist has delayed the passage of shield laws. Perhaps with an established ruling, this problem will be addressed giving courts standards and criteria to give judges guidance who qualifies for protection. This law is needed to standardize legal approaches to the privilege of reporters and to assure them that confidentiality to sources is respected. In effect, sources will feel safe and not disappear but will remain for future news stories. In a decision that strongly endorsed the principles on which the reporters privilege is based, the U.S. Court of Appeals for the 4th Circuit observed, If reporters were routinely required to divulge the identities of their sources, the free flow of newsworthy information would be restrained and the publics understanding of important issues and events would be hampered in ways inconsistent with a healthy republic. (Ganett, 2006,  ¶7). Responding to the Miller incident, James Goodale, New York Times’ former vice chairman and general counsel, has encouraged the press to fight on and to guard the freedoms of First Amendment in order to come up with better laws. Nobody can dispute that the press has strong influence in every American citizen. It has molded American opinion and shaped government policies through time. Noted journalists have been recognized for their dedication in the profession. Reporters serve as link between government and its citizens and that of other nations. Because of the press, the world has become a global village promoting culture, language, and perhaps peace. Journalists deserve better. They deserve more than just subpoenas. They have earned their right for a privilege in serving and protecting the democracy of this country. References Bates, S. (2000). The Reporter’s Privilege: Then and Now. Research Paper R-23. The Joan Shorenstein Press Politics. Public Policy. Harvard University. John F. Kennedy School of Government. Schmid, Karl H. (2002). Journalists privilege in criminal proceedings: an analysis of United States Courts of Appeals decisions from 1973 to 1999. American Criminal Law Review. Date: 22-SEP-02. Retrieved October 30, 2006, from http://goliath.ecnext.com/coms2/summary_0199-2470495_ITM McCollam, D. (2005). Attack at The Source Why the Plame case is so scary. Columbia’s Journalism Review. America’s Premier Media Monitor. Columbia Universitys Graduate School of Journalism. Issue 2: March/April 2005. Retrieved October 30, 2006, from http://www.cjr.org/issues/2005/2/mccollam-plame.asp?printerfriendly=yes Willis, J. (1990). Journalism: State of the Art. Praeger Publsihers. New York. ISBN: 0275932443 Soley, L. C. (1992). The News Shapers: The Sources Who Explain the News. Praeger Publishers. New York. ISBN: 0275940330 Schaffer, J. (2001). The Role of the Media in Building Community. Pew Center for Civic Journalism. Global Issues. An Electronic Journal of the U.S. Department of State. Volume 6, Number 1, April 2001. Baker, C. E. (2001). Media, Markets, and Democracy. Cambridge University Press. Cambridge, England. ISBN: 0521009774 Steele, R Black, J. (2001). Media Ethics Codes and Beyond. Global Issues. An Electronic Journal of the U.S. Department of State. Volume 6, Number 1, April 2001. Durity, L. (2000). Shielding Journalist – â€Å"Bloggers†: The Need To Protect Newsgathering Despite The Distribution Medium. Public Policy Studies. Duke University. Retrieved October 30, 206, from http://www.law.duke.edu/dev/journals/dltr/articles/2006DLTR0011.html Ganett Company, Inc. (2006). From Barbara Wartelle Wall: Legal Watch. 2000 Media Law Developments – Sources and Public Records. News Watch. Retrieved October 30, 2006, from http://www.gannett.com/go/newswatch/2000/december/nw1228-4.htm