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Monograph reminds reporters of their own rights.

Journalists wishing to learn from contemporary history--and there is a need for a refresher course on journalistic responsibility these days--can find the opportunity in a monograph published late last year by Western Washington University journalism professor Floyd J. McKay.

In a journalistic atmosphere in which reporters resemble government lapdogs more than watchdogs--consider embedded journalists marching on to war with invading soldiers in Iraq, a White House press corps that dismisses as non-news a British memo indicating that the Bush administration tailored intelligence to support going to war in Iraq, a major news magazine (Time) agreeing to reveal its confidential sources concerning evidence having to do with that same invasion--McKay offers a timely reminiscence of the formative years of the Reporters Committee for Freedom of the Press.

Published in the autumn 2004 issue of the Association for Education in Journalism and Mass Communication's Journalism Communications Monographs, McKay's piece details the struggles of a small cadre of journalists in the 1970s as they battled the federal courts and the administration of President Richard Nixon to protect the confidentiality of their sources of information.

Those confrontations take on renewed meaning and importance in light of new assaults on press freedoms today and of the recent revelation that retired FBI official Mark Felt was the ultimate confidential source of the 20th century--"Deep Throat," the background tipster who helped the Washington Post uncover the Nixon administration's Watergate scandal.

The Reporters Committee was a response by activist journalists to an anti-press attitude fostered by a president who distrusted and disliked journalists and who encouraged a similar attitude by his staff.

President Richard Nixon and his firebrand lieutenant of rhetorical repartee, Vice President Spiro Agnew, framed the press as the enemy of the government and of the people, and the administration had the support of a court system that routinely struck down First Amendment-based arguments by reporters protecting the identities of sources who had leaked valuable--and damning--evidence involving government cover-ups and malfeasance. It was just this sort of evidence, provided by an anonymous source, which helped topple the Nixon presidency.

The undoing of Nixon, H.R. Haldeman, et. al., by the sort of anonymous sources the Reporters Committee was seeking to protect is one irony of McKay's piece. Another is his quoting of William Safire--who wrote speeches for the Nixon administration before becoming a prize-winning columnist for The New York Times--on behalf of amicable relations with the press.

In his book "Before the Fall: An Inside View of the Pre-Watergate White House," published after he left the Nixon administration, Safire wrote that the anti-press mindset of the president and his staff was not mere carping or political gamesmanship--it was genuine hatred.

"He was saying exactly what he meant," Satire wrote. " 'The press is the enemy' to be hated and beaten, and in that vein of vengeance that ran through his relationship with another power center, in his indulgence of his most combative and abrasive instincts against what he saw to be an unelected and unrepresentative elite, lay Nixon's greatest personal and political weakness and the cause of his downfall."

It was during the Nixon administration that the primary journalistic concern leading to the creation of the Reporters Committee arose: the demand by federal prosecutors in 1970 that New York Times reporter Earl Caldwell turn over his notes of interviews with members of the Black Panthers. McKay's monograph--"First Amendment Guerillas: Formative Years of the Reporters Committee for Freedom of the Press"--cites Caldwell's refusal, based on the reporter's argument on behalf of journalists maintaining confidential sources. A small group of reporters met to discuss this and other cases of government press intrusions--from this group sprang the Reporters Committee.

This was the era of free love, of anti-war and pro-civil rights protests, of acid and marijuana--a time, writes McKay, in which "prosecutors often lacked good sources among militant racial groups, the anti-war movement or the drug culture. Reporters who were able to penetrate these organizations were seen as a source of notes, pictures and other investigative gems."

Reporters considered the Caldwell case to be "emblematic of a growing trend on the part of prosecutors, from the federal to local level, toward the use of reporters as sources. The use of subpoenas to require reporters to reveal sources was, according to William J. Small (in his book "Political Power and the Press"), 'one powerful tool which the government has used rarely in the past but dramatically and with chilling effect beginning in the late 1960s,' particularly in the period following the 1968 Democratic National Convention."

Another irony found in this scholarly remembrance of press battles past is the emergence from the Nixon administration of Jack C. Landau, who graduated from Harvard with a law degree and became a legal correspondent for Newhouse newspapers, as a leader of the Reporters Committee. Landau had served a stint as a press spokesman for the Justice Department under Nixon's attorney general, John Mitchell, before returning to Newhouse and becoming involved in the formation of the Committee--and eventually becoming its executive director.

"Although some assumed he was 'paying penance' for working with the enemy," McKay writes of Landeau, "the mission that became a crusade was typical of Landau's aggressive approach to journalism, a style he brought to the Committee." Landau viewed himself as a "First Amendment guerilla," writes McKay, "and quickly became the major player in the organization."

Landau used his connections in the Washington legal community to obtain pro-bono assistance on behalf of First Amendment issues--including freedom of information, libel, confidentiality, privacy and prior restraint.

"With Watergate coming down," writes McKay, "it was a heady time to be a journalist and a heady time for the Committee."

The time called for such a group. Besides the Caldwell case, McKay references others that mid-career and veteran journalists will remember from an age of mutual government-press mistrust. "The so-called 'Eastern establishment media' had been attacked by Vice President Spiro Agnew in 1969," writes McKay, "and federal prosecutors subpoenaed files of Time, Newsweek, and Life later that year as part of the Weathermen investigation. The Caldwell case followed in 1970, and the Pentagon Papers case broke in June 1971. It was a time of paranoia on both sides, and civil libertarians were alarmed."

And so was born a reporter ad vocacy group that survives today not only as an active agent still serving reporters on behalf of press and free-speech freedoms but also as a clearinghouse offering advice and resources regarding numerous press-freedom issues. One of the early projects of the Committee was a federal shield law that would establish the right of reporters to keep secret the names of their sources. But for various reasons--fighting among publishers and Committee members over how strong such a law needed to be, for one--a federal shield law never took hold. However, with the impetus of a 1972 U.S. Supreme Court ruling that denied Caldwell and other reporters a First Amendment right to protect sources but allowing states to enact such legislation, several states came through, and 31 states and the District of Columbia today have on the books some form of legislation protecting reporters from prosecution for failure to divulge sources of their information.

The political mood and press-baiting atmosphere that McKay chronicles bear a remarkable resemblance to the press battles being waged today. Government subpoena and press-badgering have returned in full strength--perhaps even stronger, in light of waning public sympathy on behalf of press rights and freedoms. In November 2004, Jim Taricani, an investigative reporter for the NBC affiliate in Providence, R.I., was found in criminal contempt of court after he refused to name a confidential source who had provided him with videotaped evidence of corruption involving officials of Providence who allegedly accepted a bribe from an undercover FBI informant.

In August 2004 a federal judge held Time magazine reporter Matthew Cooper in contempt of court for refusing to testify during an investigation into the leak of the identity of a CIA agent whose husband accused the administration of President George W. Bush of "twisting" intelligence to support going to war in Iraq. That October, New York Times reporter Judith Miller was ordered jailed for her refusal to answer questions before a grand jury probing that same leak.

The U.S. Court of Federal Appeals in Washington on April 19 of this year rejected these reporters' appeal of a decision upholding contempt citations against them. The U.S. Supreme Court passed on the case. Miller served almost three months behind bars after refusing to divulge her confidential sources for a story that never was published. She revealed her informant Sept. 29 when the source-Lewis "Scooter" Libby--released her from her confidentiality promise. Time caved almost immediately, agreeing--reportedly with the source's permission--to identify its anonymous source.

At least eight other journalists face or recently have faced sanctions for refusing to obey court orders to name their sources.

Meanwhile, the Bush administration and its supporters have taken up '70s-style anti-press initiatives designed to put reporters in a defensive posture. For example, National Public Radio reported in mid-December that the Bush administration wanted an investigation to determine who gave the press information about a project to develop a secret stealth spy satellite.

That same month, after a soldier fighting in Iraq publicly questioned Defense Secretary Donald Rumsfeld about the lack of equipment to fight the insurgents in Iraq, the ensuing controversy became not the soldier's question but the fact that he had been fed the question by a newspaper reporter. Similar to the tactics used by Nixon and others in the 1970s, opponents of full disclosure and supporters of presidential policies today spin the issues in a context that makes the messenger, rather than the message, the problem.

Comes now William Satire once again, writing on behalf of a federal shield law, which has been proposed in the House by Reps. Mike Pence, an Indiana Republican, and Rick Boucher, a Vermont Democrat (and co-sponsored by Missouri Republican Roy Blunt and Illinois Democrat Rahm Emanuel) and in the Senate by Indiana Republican Richard Lugar. Writing in The New York Times Dec. 13, Safire rhetorically asked the question that anti-shield advocates frequently raise: "Isn't every citizen obliged to give sworn testimony to help the government enforce the law?"

The correct answer, supplied by Safire, is, "No. Government may not compel a man to testify against his wife, nor doctor against patient, nor priest against penitent, nor lawyer against client. The law has extended this 'privilege' to psychologists and social workers, on the theory that society is ill served by erosion of trust within relationships dependent on such trust. Certainly the public interest in the robust and uninhibited flow of information should continue to protect confidential relations between source and journalist."

He's right, and McKay has given journalists and media owners a needed reminder that guerilla tactics and court battles on behalf of press--and citizens'--freedoms need not be passe. In today's atmosphere of a presidential administration that routinely avoids disclosure and shuns open government, that is moving to put on the federal courts judges likely to support policies of government secrecy, that has limited individual rights in the guise of national defense, the necessity for aggressive hard-hitting journalism has once again become clear.

Surely the jailing of Miller, who stood up on behalf of the principle of protecting anonymous sources, underscores this.

Steve Hallock, a former newspaper editor and editorial writer who earned his doctorate in journalism at Ohio University, teaches at Southern Illinois University.
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Author:Hallock, Steve
Publication:St. Louis Journalism Review
Date:Oct 1, 2005
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