Protecting Anonymous Sources
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Former New York Times reporter Judith Miller spent 85 days in jail for refusing to tell federal prosecutors the name of a confidential source. Like many journalists, Miller promises key sources anonymity in exchange for information. This time, however, government officials suspect that Miller’s source violated the law by revealing the name of an undercover CIA agent. Even though she never published the agent’s name, Miller went to jail rather than reveal her source and compromise her view of the First Amendment, which guarantees freedom of the press. “If journalists cannot…guarantee confidentiality,” Miller says, “then journalists cannot function and there cannot be a free press.”

DEMOCRACY AND A FREE PRESS

A vibrant democracy demands a well-informed citizenry. Newspapers, radio, and television provide public forums where political leaders can explain their positions on issues affecting the public interest. Also, journalists serve as government watchdogs on behalf of the people, frequently uncovering examples of waste, fraud, and abuse. Their reporting ensures that elected leaders are accountable to the people. To do their jobs effectively, journalists rely not only on laws, such as the Freedom of Information Act, but also on personal contacts (sources) who speak out against dishonesty or wrongdoing. Often, such insiders ask for anonymity because they fear retaliation.

REPORTERS’ PRIVILEGE

Occasionally, information that a reporter learns from a confidential source might be pertinent to a criminal investigation. When this happens, prosecutors’ and reporters’ goals collide. While pursuing justice, prosecutors sometimes subpoena journalists, demanding they turn over crucial information. Journalists often resist, asserting that the First Amendment gives them a privilege—similar to the privilege enjoyed by lawyers, doctors, and clergy—to protect confidential information. The Supreme Court, however, has denied that the First Amendment guarantees reporters such a privilege. As a result, 31 states have passed “shield laws” protecting journalists from unjustified subpoenas.

A FEDERAL SHIELD LAW

Even though most states have laws shielding reporters and their confidential sources, without protection at the federal level, insiders are reluctant to tell what they know because their identity could be revealed in a federal investigation. In response, Congressmen Rick Boucher (D-VA) and Mike Pence (R-IN) have cosponsored a national shield law. “Compelling reporters to reveal the identity of their confidential sources is a detriment to the public interest,” Pence says. Shield law opponents counter that reporters aren’t above the law and should be forced to cooperate in criminal cases.

THE JEWISH VIEW

The Jewish approach to journalism differs fundamentally from the American model. Unlike much of modern American journalism, which emphasizes controversy and sensationalism, Jewish law distinguishes between necessary disclosure and lashon hara (any derogatory or damaging speech, even if it’s true). Newspaper articles that benefit the public by clarifying policy issues or exposing abuse of the public trust are permitted and encouraged. However, articles that invade privacy for no useful purpose or intentionally inflame emotions are prohibited.

Even if the content of an article may be published, disclosing a confidential source could violate a person’s right to privacy, which Jewish law recognizes (Yoma 4b). This text supports a reporter’s privilege of confidentiality. Jewish law, however, balances discretion with responsibility. When the needs of the community demand public disclosure—for example, in a criminal investigation—Jewish law demands disclosure.

WHAT DO YOU THINK?

Would a federal shield law (shielding reporters and their confidential sources) protect or harm the nation?