Preserving a free press

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Despite the presumption that the law is entitled to every person's evidence, journalists have long sought to establish a right implied by the First Amendment to protect from disclosure confidential sources and such related materials as notes and video out-takes.

The claim was rejected by the Supreme Court in the 1972 Branzburg v. Hayes trilogy, and it will likely fail again in cases involving Judith Miller of the New York Times and Matt Cooper of Time magazine relating to the "outing" of covert CIA operative Victoria Plame.

The failure of the press to win converts to its cause involves far more than low public esteem.

First, the media has never established their claim that denying constitutional privilege will chill sources who might otherwise expose public or private wrongdoing. Justice Byron R. White had observed in Branzburg: "From the beginning of the country the press has operated without constitutional protection for press informants and the press has flourished." Events have proven him right. Much of the Watergate reporting came later. So did Iran-Contra, Monica Lewinsky and Abu Ghraib.

Also, there are times when claimed constitutional rights collide. In the 1970s, reporter Myron Farber of the New York Times published accounts of a series of mysterious deaths in a New Jersey hospital leading to the murder indictment of a former staff doctor. At trial, Mr. Farber refused to turn over notes of interviews with individuals who later became witnesses against the accused. Eventually he went to jail for 40 days and the NYT paid $285,000 in contempt penalties. But the appellate court held the defendant's Sixth Amendment right to confront adverse witness trumped any right asserted by the NYT.

Journalists could use absolute protection in ways that disserve society. Consider a hypothetical libel case brought by a public official. The reporter is already protected by the tough "actual malice" standard of New York Times v. Sullivan. Were he then able to deny the plaintiff access to his sources, out-takes, notes or editorial conversations the reporter would have, in effect, an impenetrable shield against evidence of his own recklessness.

Often the material produced by reporters and their confidential sources seems barely worth fighting for. In Providence recently, Channel 10 reporter Jim Taricani began serving a six months sentence for refusing to disclose the identity of the person who gave him a videotape showing an aide to former Mayor Vincent A. "Buddy" Cianci Jr. receiving a $1,000 bribe from an FBI informer. Pretty big scoop? Maybe. But the tape was already in the court's custody and had been distributed to counsel with a protective order barring its showing prior to trial in order to preserve an impartial pool of jurors.

The leak of Mrs. Plame's name in a Robert Novak column came during a hissing match between her husband Joseph Wilson and the Bush White House over Mr. Wilson's investigation of Saddam Hussein's efforts to buy uranium enriching material from the African nation of Niger. Mr. Novak correctly reported that his CIA wife had been the first to suggest her husband, a partisan Democrat, for the mission. That, not her name, was the story.

The liberal press has contributed to its own legal difficulty. First it over-reacted to the Novak leak: the Atlanta Journal-Constitution branding it "almost treason"; the Boston Globe pleading for a special prosecutor. Liberal commentators like Geneva Overholser, Jonathan Alter and Jules Witcover urged Mr. Novak to betray his own source.

So much for Constitution-based privilege.

Yet one reform-demanding problem predicted in Branzburg has come to pass. In his dissent, Justice Potter Stewart warned that the decision "invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government."

That appears to have happened in the Plame case where special prosecutor Patrick Fitzgerald has distributedconfidentiality waivers like a drunkard's tipping money, coercing suspected sources into waving the reporter's agreement to keep their names confidential.

In Providence, the leak investigation continued long after Cianci and his aide were convicted and sent to prison, and Mr. Taricante finally revealing his source after seeing a signed waiver.

The prospect of a perpetual prosecutorial piggy-back ride on the backs of working journalists is ugly and unbecoming in a free society, as is the sight of reporters lugged off to jail in the most marginal of cases.

The solution is legislative, not constitutional. A federal shield law could be designed providing protection to the reporter unless the moving party shows the evidence he seeks is highly relevant; is not available from others accessible to the court; engages important societal values; and clearly serves the interest of justice.

Under this standard, Mr. Farber would have had to provide his evidence, Ms. Miller and Mr. Cooper would not, and Mr. Taricani's vulnerability would have ended with the Cianci trial. Not a bad day's work.

Robert Zelnick is chairman of the Department of Journalism at Boston University and a research fellow at the Hoover Institution. He was a correspondent with ABC News for 21 years.