Not All News Leaks Deserve Law’s Shield

There will be lots of embarrassing side shows going on in Washington during January’s inaugural. One of the most interesting will probably get little media attention, though, because it’s the media that will be most embarrassed. Congressional hearings into news leaks in the Atlanta Olympic bombing investigation will put the FBI in the hot seat, but the real culprits that may emerge are the “shield laws” that protect the leakers of confidential investigative reports, and the media sensationalists who give the First Amendment a bad name.

The American people may not be as sympathetic as they were two decades ago to media claims that confidential sources should be protected. Watergate is a dim memory. A recent poll commissioned by the Center for Media and Public Affairs found that barely half of Americans trust the media to “get the facts straight.” Half of Americans also believe that news media abuse the First Amendment, and half favor making it easier to sue for inaccurate or biased reporting. And 70% agree that courts should be able to fine the news media for inaccuracies and bias.

In case after case around the country, courts have been frustrated in efforts to enforce protective orders designed to protect a defendant’s right to a fair trial against the leaking of confidential investigative information. When a local television newscast featured full details of an embargoed confession while the jury was being selected during the trial of Richard Allen Davis for the murder of Polly Klaas, Judge Thomas Hastings summoned the reporter to court and held her in contempt when she refused to identify the leaker. The judge’s order was recently reversed on appeal on the grounds that California’s broad “shield law” trumps a judicial gag order. During the trial in federal court of Panamanian Gen. Manuel Noriega, CNN ignored a judge’s plea and ran Justice Department tapes of intercepted telephone calls between the imprisoned Noriega and his attorney. Judge William Hoeveler fined the network, but the leaker was never identified. During the criminal trial of O.J. Simpson, the leaking of DNA laboratory test results was halted only when Judge Lance Ito ordered the labs to send the results directly to him rather than to the police.

The Olympic bombing investigation is a particularly egregious example of the harm that can be done to an innocent person’s reputation by law enforcement leaks. After being exonerated by the FBI, security guard Richard Jewell threatened to sue NBC for anchor Tom Brokaw’s remark that the authorities “probably have enough to arrest him right now, probably enough to prosecute.” Brokaw said his assessment was based on “knowledgeable sources” in law enforcement agencies in Atlanta and Washington. In announcing a quick cash settlement with Jewell, NBC explained that it was motivated by the need to protect its “unnamed sources.”

Strict federal regulations specify with great precision the information that can and cannot be released in pending Justice Department investigations. Leaking information protected by these regulations cannot be equated with “whistle-blowing.” Such leaks compromise an ongoing investigation rather than expose a cover-up.

No legitimate First Amendment goal is furthered by the media frenzy to increase ratings with sensationalized exposure of confidential information.

By giving absolute protection to unidentified news sources, we diminish the flow of information coming from those who are willing to take responsibility for their statements and increase the flow from nameless and unaccountable leaks.

Current shield laws not only protect the leaker from any consequences for his breach of confidentiality; they also place no responsibility on reporters for lack of restraint in promising confidentiality to their sources.

Law enforcement, of course, is not the only source of leaks. Reporters occasionally quote “a source close to the defense.” Defense lawyers forcefully assert their right to speak freely in the court of public opinion. The public is well aware that when lawyers appear on talk shows or hold press conferences, they still are advocates representing their clients. For that very reason, public statements from the lawyers are given less credibility than statements from others. A lawyer who seeks to influence public opinion should not be allowed to speak anonymously. If the source of a leak is a lawyer appearing in a case, anonymity under shield laws should be forfeited. The public is entitled to know if the information came from an advocate in the case.

The Society of Professional Journalists addressed the leak problem with a new code of ethics adopted in September. It recommends that sources be identified whenever feasible because the public is entitled to as much information as possible on a source’s reliability. “Always question sources’ motives before promising anonymity,” it suggests. It will be interesting to learn what policy NBC followed in this regard in its coverage of the Atlanta bombing investigation.

Somehow, the irony has escaped us: that we encourage irresponsible breaches of confidentiality by protecting the confidentiality of the violators’ acts of treachery.