Reporters Weigh the Value of Information Against the Threat of Legal Action

Reduced to its essence, the ethic of all enterprising journalism is this: Don’t commit a crime or a sin, at least not a mortal one, while pursuing information. But also don’t think too much about whether the person giving you the information is committing one, either. When put this way, such an approach to our work sounds bad, and in the view of much of the American public, it is bad. Yet I endorse this ethic, even though carried to its logical extreme it is a standing invitation to our sources—meaning our fellow citizens—to break the law, betray confidences, and tattle on rivals for petty motives.

Not that there’s anything inherently wrong with any of this. Journalism is, after all, an unruly business and, at least until recently, its practitioners have been constitutionally protected from getting into too much trouble for being too aggressive. Often, as the gates have swung closed on some allegedly vital state secret, journalists have been there to pry them open by means that are not always authorized by the gatekeepers.

“The extraordinary freedom of the American press is dependent on the handful of journalists willing to dig for the facts that officials would prefer to keep hidden,” wrote Thomas Powers in the introduction to “The Search For the Manchurian Candidate,” the 1991 book by investigative journalist John Marks about the CIA’s long and sordid history of experimenting with mindcontrol drugs on American citizens. “In effect, freedom of the press is also the wild card of American democracy, since there is no predicting what journalists will take into their heads to pursue,” Powers went on to say. “John Marks, asking no one’s by-your-leave, decided he wanted to know why ‘an employee of the Department of the Army’ had been dosed with LSD and then handled so casually he was allowed to jump from a 10th-floor hotel window in New York in 1953.”

In digging for such evidence, a journalist might witness a crime or be on the receiving end of someone else’s decision to commit one. For example, if federal law forbids release of information on CIA operations, then whoever leaked it is a criminal, and the person who received this information thus becomes a witness to a crime and subject to criminal inquiry.

Daring to Be Bridled

This is certainly the set-up—and I use that word advisedly—involving a special counsel looking into accusations that someone leaked the name of Valerie Plame as an undercover CIA operative. Of course, the actual leak was to columnist Robert Novak, but Judith Miller of The New York Times and Matthew Cooper of Time might or might not have been told the same thing by the same person or persons. They won’t say, so they might be serving time in jail as these words are published.

We’ve now reached the point at which journalists who inadvertently witness a crime—being told, unbidden, that someone was a secret CIA operative and not even using the information in a published story—are at risk of going to jail for not coming clean. By this standard, as citizens, we should probably be tackling jaywalkers and performing citizen-arrests. Or we should be arrested when we don’t. As a consequence of this, and of other journalistic trends of our time, what we are instead witnessing, in too many cases, is a return to the 1950’s style of reporting (a time perhaps not coincidently when the CIA was on the loose in America) that might politely be called “stenographic.”

At United Press International (UPI) where I work as an editor, investigative reporter Mark Benjamin, who recently left to work at Salon, and I worked on a number of stories in which we needed to weigh the ethics and motives—and legality—involved in being given certain information, particularly involving stories we worked about soldiers’ health and the military. In general, we believed that the value of making the information public outweighed the value of adhering to an administrative rule or trying to determine if a statute had been broken by someone who gave us information.

One situation gave me pause and that involved our use of leaked medical records of an individual, including his psychiatric history. Someone showed these records to us, and I am very sure this person was not in a legal position to do so. (I certainly wouldn’t want my medical records being eyeballed by anybody but my doctor.) Ultimately, however, we felt the information in those records—and the disturbing pattern they showed in a specific institution’s quality of medical care—trumped these legal and privacy issues. (How we used this information, I don’t want to say, but I believe we made the correct decision.)

I am sure some people will read this account of our work and conclude that it is exactly the problem with American journalism today. But I’d contend that the true problem we, as journalists, confront today is the failure of much of the American press to play John Marks’s “wild card”—and with nobody’s permission, start snooping into whatever needs looking at and doing so as aggressively as they can.

It seems unnecessary to recite the lapses in the press’s probing of the weapons of mass destruction claims before the war in Iraq and its piling on afterwards, when the risks of being “tough” were low. (A notable exception is the Washington bureau of Knight Ridder Newspapers, which should have won a 2003 Pulitzer Prize for its consistent investigation into the administration’s statements.) And what news reporters were going after Vioxx, given the early reports of heart attacks and strokes and a company that some believe dragged its feet in acknowledging them? Wouldn’t it have been better to obtain a damning internal company memo sooner rather than later, regardless of what company policy or statute regarding propriety information any potential leaker was violating?

Future Implications

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Why the First Amendment (and Journalism) Might Be in Trouble”
– Ken Dautrich and John BareYet it appears that the public—American citizens who have the most to lose when journalism dulls its cutting edge—is all for dulling it. A ghastly poll of high school students recently found that “nearly half of the students said newspapers should be allowed to publish freely without government approval of stories.”

When half of the upcoming population of adults in this nation think prior restraint by government on the press is just fine, we need to consider for a moment the implications of this finding. Will this next generation be willing, perhaps in the wake of future terrorist attacks, to dispense with freedom of the press altogether or limit it to stenography of official pronouncements? That’s unlikely, of course, but no one should underestimate the ability of fear and sophisticated sound bites—otherwise known as propaganda—to shape the public mood.

And if I’m reading it right (and I am, unfortunately), the U.S. Supreme Court recently refused to stop a lawsuit against a Pennsylvania newspaper for printing defamatory comments by a public official. The case involved the Daily Local News in West Chester, Pennsylvania, which reported that a member of the Parkesburg council called the former mayor and current council president homosexuals and criminals. The council president had responded (effectively, I’d say) that if the council member made comments “as bizarre as that, then I feel very sad for him, and I hope he gets the help he needs.” He and the former mayor did not feel quite so sad for the newspaper. They sued it for printing the offending comments; the Pennsylvania Supreme Court found no neutral reporting privilege exists, and the case proceeds.

This raises the specter that a journalist could commit a crime by quoting Senator X as saying Senator Y is selling military secrets to al-Qaeda. Of course, this circumstance might tell us more about Senator X’s mental stability than Senator’s Y’s patriotism, but isn’t the public interest served by knowing this, even if the reporting of this contention breaks the law? I vote yes.

Dan Olmsted is a senior editor in UPI’s Washington, D.C. bureau.