Freedom of the Press Revisited

Like most American students in junior high, I studied the U.S. Constitution and the Bill of Rights. I know that the First Amendment protects freedom of speech as well as the freedom of the press.

Over the years since seventh grade, I've seen news items about reporters going to jail rather than reveal their sources for stories. However, I never gave much thought to what that meant as a practical matter.

Tuesday's Washington Post had an article titled "New York Times Columnist Must Reveal Sources, Judge Rules." A federal judge in Virgina ordered the New York Times to disclose the sources used in articles about whether scientist Steven J. Hatfill was responsible for the 2001 anthrax attacks that killed five people. No one was ever charged in those attacks.

Hatfill brought a defamation lawsuit against the newspaper for identifying him as a "likely culprit" in stories that appeared in 2002. His attorneys demanded that the reporter, Nicholas D. Kristof, reveal his sources. The judge agreed and ordered Kristof to disclose the identity of his "three sources" by Wednesday.

The Post article said this ruling is just the latest in a series in which journalists have been denied the right to protect their sources. "Judges have ordered reporters covering issues ranging from baseball's steroid scandal to the investigation into the leak of CIA officer Valerie Plame's identity to disclose confidential sources." New York Times journalist Judith Miller spent nearly three months in jail for refusing to give up her sources in the Plame case.

The Post points out that the Plame and steroid stories involved criminal cases while Stephen Hatfill's case is a civil lawsuit.

Legal experts said it is relatively common for judges to order journalists to reveal confidential sources in a libel lawsuit, but journalists are rarely jailed for resisting. The reason for this is that there are other, equally powerful consequences. In a civil case, "If the journalist does refuse, a judge often strips him or her of the defense that the information was based on sources, which can expose media companies to significant liability, said Rodney A. Smolla, dean of the University of Richmond Law School and an expert on First Amendment law. 'The journalist is being told you cannot have your cake and eat it, too,' Smolla said. 'You can't rely on the existence of this source but not let the jury and the court and the plaintiff explore the nature of the source.'"

This makes perfect sense. If I believe a newspaper has defamed me, I can bring a lawsuit against them. If the newspaper's defense is that they only reported what was told them by reputable sources, I should have the right to know the sources they were quoting. If they refuse to provide those sources, then--in effect--they have no defense.

Kristof has claimed that two of the three sources were employees of the FBI while the third was a colleague of the plaintiff Hatfill.

I have two last thoughts: (1) This is a reminder that we, as writers, are responsible for what we put in print, and we must be prepared to either support our position or suffer the consequences, and (2) I remain grateful for the protection of the laws of this country. While we often hear of crazy lawsuits and strange rulings, the vast majority of the decisions made every day in courts across the country are sane and reasonable. As I count my blessings today, this is one of the things I am thankful for.

David Halberstam may have said it best: "For all of the difficulties, I am somewhat optimistic about the future. In my lifetime I have seen the resiliency of American democracy. What I've come to admire is the muscularity and flexibility of this society. What I trust is its common sense."