On confidential sources

I’m at the inaugural public event for CUNY’s Graduate School of Journalism for a discussion on confidential sources with Dean Steve Shepard (my new boss), NY Times Executive Editor Bill Keller, Time Inc. Editor in Chief Norman Pearlstine, and First Amendment attorney Floyd Abrams. I’ll be live-blogging as warranted (and for those who haven’t seen live-blogging, it’s not an attempt to write a story, only to share what I hear as I hear it). [See various full disclosures on my relationships to this table here.]

To start from the middle, here is the discussion of interest to bloggers about extending a shield law beyond mainstream news:

Shepard: “If we are to have a national shield law, how are we to define a journalist?”

Keller: The NY Times should be exceedingly humble about trying to decide who and who is not a journalist since we meet the test…and it feels like pulling up the ladder behind us…” He said he would be in favor of a broad definition. “Should it include bloggers? I think it should include some bloggers.” He did not get a chance to further define that further.

Pearlstine says he would be in favor of something broader than the language in the current draft, which covers people who make a living from journalism. “The bloggers are a whole lot closer to what the First Amendment was designed to protect,” says Pearlstine.

Shepard replies: “Everybody becomes a journalist.”

Abrams; “That was something that was yelled lat me in the oral arguments.”

Abrams says it’s hard to persuade legislators and judges that “a privilege should extend to everyone. Then you’re not talking about a privilege at all.” Shepard: “You’re talking about an entitlement.”

Shepard quotes Geneva Overholse saying that we should not define journalists but journalism. Pearlstine says he fears getting close to licensing journalists.

Abrams says the analogy is the priest-penetent relationship because we do not like to define religion. It needs to be someone who holds himself out as providing spiritual advice.

: In question time (after the obligatory anti-Miller, anti-Bush screed), I ask the panel what they would advise a blogger, an independent citizen journalist, who has information from a source and wants to publish it on the internet. Should they offer confidentiality? What, I ask, would you advise your child who blogs.

Keller says that an individual is unquestionably at greater risk without the support of an institution behind him or her. Abrams says that even in the dozen states that offer an “absolute” shield, they would not likely cover a blogger.

This is an issue for us all.

(I now realize I should have asked Keller what bloggers he would shield; my fault I didn’t.)

: Shepard: “Floyd, what is your best guess about Bob Novak.” Abrams says he has to take a deep breath and remind himself that we still have libel law. He says he thinks he testified.

: Now to the beginning:

Shepard asks Pearlstine: “If you had it to do over again, what if anything would you do differently.” Pearlstine replies: “I would have been more rigorous in questioning at the time we at first received the subpoena whether Karl Rove in fact deserved confidential source status.” He says he had thought that this was reserved for whistle-blowers, people who fear for themselves because they give us information for the public good. He says that a “90-second conversation with the President’s spin doctor” probably doesn’t merit that status. Shepard: You might, in hindsight, have decided that Karl Rove did not deserve confidential source status. Pearlstine: “I would have liked to have at least had the conversation.”

Shepard asks whether he is concerned about other sources giving information to Time. Pearlstine: “I have been worrying about the chilling effect of special councils… plaintiff’s lawyers trying to gain the names of confidential sources long before Matt Cooper…. At the time that we decided to turn over the file we were working on three stories that relied heavily on confidential sources” and if they’d been litigated and lost “we would have paid the fine and done the time.” The Rove case is unique, he says.

Pearlstine says he expects there are journalists in Time Inc. who disagree and disagree violently with his decision to hand over files. But that said, he adds, they have been getting stories with confidential, off-the-record, and not-for-attribution sources. He says reporters can still do their jobs well.

Next to Abrams: Why shouldn’t Time have obeyed that court ruling? He won’t bite and says he’s not here to say that. He says that there is a history of reporters refusing to reveal confidential sources and that at the end of litigation the one thing that was clear was that the information would not be handed over. The implication, if I’m hearing it right, is that Time broke that precedent in the industry.

Shepard asks whether the testimony of other journalists hurt Abrams’ ability to defend Judy Miller. “I’ve always thought that if there were five journalists or 10 or 20 at risk, we would have been in better shape.” The implication, if I’m hearing it right, is that others left Miller out there to stand alone.

Shepard asks Keller if there are any circumstances where The Times would reveal a confidential source. Keller replies that he can imagine circumstances — for example, if he were genuinely convinced that he were released from a pledge of confidentiality by someone witting and willing. “I’m not an absolutist on the morality of this, though I believe it’s a very important principle Judy’s gone to jail for.” He says if the choice is to reveal a source or save lives, he likely would come down on the side of saving lives.

Shepard asks whether one has an obligation to protect a source who has misled you for political reasons. Keller says no.

Shepard says we in the press have missed the bigger story: that Rove manipulated the players and the press and those who held a pledge of confidentiality and knew that could not report the story. Pearlstine: “I think it’s a gross exaggeration of Karl Rove’s role… this is the kind of manipulation that does on a thousand times a day in Washington.”

Pearlstine also points out that Time Inc. was a defendant but The Times was not and so other employees were at the risk that Cooper and Miller were under because they’d read an email Cooper wrote naming Rove. Abrams agrees that the special prosecutor would have prowled around Time Inc. and put more people at risk. But he says that individuals and corporations are similar and Shepard says, “so corporations can engage in civil disobedience.”

Keller replies to Shepard’s question on reporting the Rove story and says that it’s not the case that “the administration is the ultimate responsible party in this has gotten off scott-free at all.”

Shepard asks Keller whether it is the policy for editors to know the identity of a confidential source. “If the article is to be published, yes,” says Keller. In this crowd, that is a punchline. Keller explains that the standards editor does spot checks on the use of anonymous sources; asked whether they keep stats on the use, Keller says no. Pearlstine says Time is examining its policies and he’s surprised at the variance of practice in the business: Ben Bradlee didn’t know the identity of Deep Throat until after Nixon resigned while the Dallas Morning News, Pearlstine says, has a policy of “mirandizing” sources, telling them that if compelled to reveal their identities, they will.

Shepard asks what a national shield law should contain and except. Abrams says the current draft has an exception for imminent harm to national security (future, not past); he adds that it should include imminent personal harm. There is much disagreement about what to do if the passing of information is itself illegal. He says that any leak about a federal crime violates the privacy act. Keller says that such an exxemption would “blow a significant number of anonymous sources out of the water.”