PLATTSBURGH -- The complexities of the Valerie Plame case sugar down to a crucial journalistic dilemma: where to draw the line between news gathering and enforcing the law. Robert Freeman, executive director of the New York State Committee on Open Government, spoke about freedom-of-information laws last Friday as part of SUNY Plattsburgh's inaugural Symposium on the First Amendment and Media Ethics.
Dave Heller, the silver-haired staff attorney for the Media Law Resource Center, addressed the issue of reporter's privilege. That concept enables journalists to use confidential sources without having to reveal their names to government officials or private interests.
The idea that sources can speak "off the record" is generally accepted as a component of democracy, protected by the First Amendment's promise of "freedom of the press." It encourages government officials and whistle blowers -- such as Mark Felt, Watergate's "Deep Throat" -- to leak information to the media.
But it's constantly tested. New York Times reporter Judith Miller was recently imprisoned for refusing to out a confidential source who leaked the identity of CIA agent Valerie Plame. She finally revealed her source last week, after being freed from jail, when he released her from her confidentiality pledge.
Heller likened Miller's jailing to events in dictatorial regimes in Latin America and Southeast Asia, calling it "unseemly" and "a tremendous black eye."
But Miller and other reporters in the Plame case aren't the only ones embroiled in anonymous-source disputes; Heller regaled the crowd of three dozen New York and Vermont journalists and journalism students with the lesser-known story of an Alabama football coach who sued Sports Illustrated. The magazine ran a 2003 story claiming the coach got drunk and had sex with two women he met at a bar. Heller described S.I.'s account in detail, down to the magazine's assertion that one of the women yelled out the school's motto during the act.
Heller explained that S.I. relied heavily on an anonymous source, and the coach is now suing the magazine to find out who that was. He claims he was too drunk to have sex that night, and he hadn't taken his Viagra. That got a few laughs.
Less amusing was the fact the courts have demanded S.I. reveal the source's identity. Alabama, like 30 other states, has a shield law that protects reporters from having to divulge the identities of confidential sources (New York also has a shield law; Vermont does not). But Heller explained that Alabama's shield law doesn't include magazine journalists. S.I. would have been screwed if the coach hadn't settled on Monday; attorneys declined to say whether the magazine had revealed its source.
Settled or not, the case highlights the vulnerability of the reporter's privilege, even in states where it's ostensibly protected. Said Heller: "Reporters and their lawyers around the country are worried about the legal uncertainty that surrounds [it]."
Heller pointed out that current legal battles have sparked discussions in newsrooms across the country about the use of anonymous sources. Mike Donoghue, adjunct professor of journalism at St. Michael's College and a sports reporter for The Burlington Free Press, added that his paper has revisited the anonymous-source issue. Interviewees, he said, "sometimes want to tell you as much as they can off the record, but we've been instructed to stay on the record as much as possible." Donoghue said reporters need to work harder to press sources to speak openly -- or "pump 'em as hard as you can," he suggested.
Donoghue also raised another issue: "Who is a journalist?" he asked. Are freelancers, volunteer writers, citizen journalists and bloggers protected, too? Yes and no, answered Heller. He explained that shield laws and courts generally extend the privilege to "hot-news reporters" first, but other writers can also be covered. As for bloggers and citizen journalists -- people who submit articles to the websites of traditional newspapers, or to community-run sites such as iBrattleboro.com and iBurlington.com -- that's still being worked out in the courts and in Congress. Senators are considering a national shield law, but Heller says some of them won't sign it if it includes protections for bloggers.
In a second session on blogging, Heller noted that it takes time for the law to catch up with changing technologies. "It's not always easy when you have judges who don't own a computer trying to decide the issues," he quipped.
But Heller said the status of electronic publishers is a growing concern, as more and more news goes online. "Without some protections for newsgathering," he said, "the First Amendment becomes quite hollow."