This morning, I am imagining myself as a reporter in an American newsroom, and I’m trying to answer a simple question:
If I promise confidentiality to a source, how long will my company allow me to protect my source’s identity?
· Until I am subpoenaed to testify concerning my source’s information?
· Until all efforts to use the judiciary to protect my source’s identity have been exhausted?
· Until my source gives permission to reveal her or his identity?
· Forever? Even if it requires me to serve time in jail and my company to pay fines?
Beats me. Are there any other reporters out there who don’t know the answer?
For that matter, are there any sources out there – current and potential – who don’t know the answer?
Is your news organization talking about these questions? One newsroom that’s talking about the issue is The Plain Dealer in Cleveland, where the editor’s concern for protecting the confidentiality of sources has caused him not to report “two stories of profound importance.”
Perhaps the editors and reporters in your news organization are talking about the source issue (and I’d love to hear from you about your conversations.) But let me suggest that all newsrooms should be talking – because the role of the source in our news reporting is changing.
Traditionally, most of an editor’s questions about a reporter’s unnamed source focused on the accuracy of the source’s information. Editors asked their reporters: Will this information stand up under the public’s scrutiny? Will it withstand court challenges? The identity of the source was important – but it was just one factor in the process of evaluating the credibility of the information.
Today, however, a number of editors are asking another question before agreeing to use information from an unnamed source: Can our pledge of confidentiality withstand an investigation into who gave us the information?
Clearly, in the aftermath of developments over the past two weeks in the case of who outed CIA Agent Valerie Plame, newsroom leaders disagree over just how ironclad any pledge of confidentiality can be. In news conferences, columns and interviews conducted with numerous news organizations, editors have offered a variety of positions:
· Norman Pearlstine, editor-in-chief of Time Magazine, decided to reveal the identity of reporter Matthew Cooper’s source after the company’s efforts to fight a federal subpoena in the courts had failed. “The court concluded that a citizen’s duty to testify before a grand jury takes precedence over the First Amendment,” Pearlstine told AP. “I do not agree with that, but I have to follow the laws like every other citizen.”
· Bill Keller, executive editor of The New York Times, said his reporter, Judith Miller, made a “brave and principled choice” to go to jail rather than reveal her source’s identity. “The bottom line,” Keller said, “is that Judy Miller made a commitment to her source and she’s standing by it. That’s in the highest tradition of this job we all do.”
· John Temple, editor of the Rocky Mountain News, wrote over the weekend: “I part company with some of my brethren, who have been harshly critical of Time magazine’s decision in the same matter to turn over notes revealing its source after fighting all the way to the Supreme Court, thereby avoiding financial sanctions.” He continued: “Many journalists cite the Miller case as a compelling reason for a federal shield law. And I agree. But a shield law will just clarify when a judge may order disclosure. Even with a federal shield law, journalists on rare occasions are going to be ordered to divulge their secrets. That is why journalists should weigh and measure the value of information proffered to us on a confidential basis very seriously before promising to protect someone’s identity in the first place.”
A week before the Miller sentencing, Doug Clifton, editor of The Plain Dealer, warned in a column about the impact of legally compromising a reporter’s ability to protect a source: “One of two things is likely to happen: The source won’t share the secret, or the newspaper won’t publish it.”
Then Clifton continued:
“As I write this, two stories of profound importance languish in our hands. The public would be well served to know them, but both are based on documents leaked to us by people who would face deep trouble for having leaked them.
“Publishing the stories would almost certainly lead to a leak investigation and the ultimate choice: talk or go to jail.
“Because talking isn’t an option and jail is too high a price to pay, these two stories will go untold for now.”
Last week, in an interview with Editor & Publisher, Clifton said lawyers for Newhouse, the company that owns The Plain Dealer, believed the newspaper could not prevail in a government investigation of who leaked the documents.
“They’ve (the lawyers) said, this is a super, super high-risk endeavor, and you would, you know, you’d lose,” Clifton told E&P. “The reporters say, ‘Well, we’re willing to go to jail, and I’m willing to go to jail if it gets laid on me, but the newspaper isn’t willing to go to jail. That’s what the lawyers have told us. So this is a Time Inc. sort of situation.”
By Monday, some editors questioned The Plain Dealer’s decision.
In an article in Monday’s New York Times, Paul Steiger, managing editor of The Wall Street Journal, said that “if documents come to a reporter or news organization and the reporter has not done anything illegal to get the documents, I cannot understand what the basis for a criminal prosecution would be.”
Clifton, in a telephone interview Tuesday, said the threat of a government effort to learn a source’s identity is not new – nearly 30 years have passed since Myron Farber of The New York Times served jail time for refusing to identify a source. “It’s an old game – being played with renewed vigor,” said Clifton, a former chair of ASNE’s Freedom of Information Committee.
“Something significant has changed since 9/11,” he said, “in the way government documents are marked ‘classified’ willy-nilly; in the substantial number of Freedom of Information requests that are held up; in the greater vigor with which the government pursues information that is perceived to have an effect on national security.
“It’s a change that has infected our thinking about information and leaks. There’s a renewed threat of prosecution.”
Referring to the two stories the paper is not running, he said: “In a different climate, we probably would have put those stories in the newspaper. Ten years ago, we would have run them… I know that reasonable people can say we made the wrong call – that we flinched. But the risk of going forward was too high.
“Look, it’s not like we’ve abandoned the stories. We’ll get them some way – we’re just not going to get them this way.”
Clifton agreed that newsrooms need to be talking about the impact of recent developments on the reporter-source relationship.
“We are in the judgment business,” Clifton said. “Situational ethics is the norm. Every case raises different questions and we have to make judgments.
“For example, the two-source rule makes a lot of sense,” he said, referring to policies that require at least two sources before information can be used with attribution. “But sometimes there’s a single source who’s so trustworthy, so believable, so credible – all of your ‘so’s’ – that you might consider running the information if the public would truly be served.
“But change the circumstances a bit – if the same source’s information involves someone’s criminal behavior, now your decision to publish information without attribution raises questions about libel, fairness and other issues. You might decide you can’t publish that information. You’ve got to understand that every situation is different.”
Once the pledge of confidentiality is made, Clifton said, he believes you stand by it. “A promise of confidentiality is almost absolute,” he said, and “almost” only because there might exist an extremely rare situation in which the pledge could not be justified morally.
So here’s my question for newsroom leaders: Do your reporters know your organization’s policies concerning the use and protection of information obtained from confidential sources?
And are your reporters accurately explaining the company’s policies to their sources?
Are you sure?
In June, the Associated Press issued a memo to the entire staff, urging everyone to “study” AP’s policy on anonymous sources. The memo followed the controversial Newsweek story concerning U.S. prison guards’ treatment of the Koran and revelations about Deep Throat. The memo said:
“AP has long had an excellent policy on anonymous sources that has set the standard for the rest of the news media… The rules serve us well when we enforce them strictly. But, too often, we’re finding that staffers are not familiar with them: They haven’t read the policy; they haven’t discussed it; sometimes, they have forgotten it.”
Do the members of your staff know your policies?
In roughly one of every four American newsrooms whose leaders responded to a recent survey conducted by AP and APME – the rule is absolutely clear cut: No unnamed sources are allowed. If you work in one of those newsrooms, you simply cannot offer confidentiality to a source.
But in the majority of news organizations, the policies reflect the more subjective nature of decisions to grant confidentiality to a source.
“The use of unnamed sources is limited to the most compelling cases where an important story can be told no other way,” David Boardman, managing editor of The Seattle Times, told AP. Carl Lavin, deputy managing editor of The Philadelphia Inquirer, told the AP that his paper discourages the use of unnamed sources, but “this needs to be balanced with the need to present vital information to the reader that cannot be obtained by other means.”
The APME survey communicated an overwhelming preference among newsroom leaders for on-the-record information. Some editors, even though their policies allow for quoting an unnamed source, said their restrictions are so tight they almost never do so; one said his policy probably would not have allowed Deep Throat’s information to be published.
Reporters, what does your newsroom policy say?
And do you – and your sources – understand exactly the meaning and implications of all of the words in your policy? Words like “confidential,” “off-the-record,” “on background?”
Editors and producers, I think the AP was on to something when they suggested it was time for everyone on the staff to get out the policy and study it. Maybe you agree and have already done the same.
If you write a column in the newspaper or in some other venue and haven’t already done so, you might want to share that policy with your readers – a group that most likely includes your sources.
And finally, please let your reporters and sources know one last thing: Are there any circumstances that would cause your organization to reveal a confidential source’s identity?
No? Are you sure?
Yes? What are some of those circumstances?
Your answer might not be a straightforward yes or no. Whatever your answer is, your reporters – and their sources – need to understand what they’re getting into.
