Journalists Fear Impact on Protecting Sources - New York Times

Journalists Fear Impact on Protecting Sources - New York TimesOctober 1, 2005
Journalists Fear Impact on Protecting Sources
By KATHARINE Q. SEELYE

The decision by Judith Miller, a reporter for The New York Times, to testify before a grand jury after spending 85 days in jail for refusing to do so has left many people who are interested in the case confused and eager for more details.

Lawyers said it was difficult to predict the long-term legal consequences of Ms. Miller's sudden release from jail and subsequent testimony because many questions about the circumstances that led to those events remain.

But some lawyers and journalists said the claim by journalists that they have the right to protect confidential sources had been weakened. And they were less worried that Ms. Miller's case would cause sources to refuse to talk than it would cause prosecutors to clamp down.

"The inescapable conclusion that some could draw here is that after a certain period of time, when the reporter is fed up with being in prison, she will make a concession," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "I'm not saying that's what happened here. But that's the appearance. The danger is it will embolden others in more common garden-variety investigations to say to the judge, 'All you have to do is stick the reporter in jail, and we'll get what we want.' "

Some journalists said they would withhold judgment about Ms. Miller's actions until they could learn more about what had happened.

Eugene Roberts Jr., a former managing editor of The New York Times and former executive editor of The Philadelphia Inquirer, said, "On the basis of The Times's stand so far and Judy's stand, I would certainly resolve any doubts in their favor, unless information emerges to the contrary, because they have certainly been the ones carrying the ball for an important journalistic principle."

Some were uncertain about the degree to which that principle - that journalists should be able to protect the confidentiality of their sources - had been compromised.

"I would hope that the principle in the end wasn't sacrificed," said Steven A. Smith, editor of The Spokesman-Review in Spokane, Wash.

But Martin London, a First Amendment lawyer who has represented clients as diverse as Jacqueline Kennedy Onassis and the Brown & Williamson tobacco company in suits against journalists or news organizations, predicted a rough road for journalists who sought to protect confidential sources.

"At least in this case, the judge's sanction of confinement seems to have been very effective," said Mr. London, who does not support the position that a reporter has a legal right to withhold the names of sources. "It really goes to show how evanescent the claim of privilege is."

Still, Mr. London said, the developments surrounding Ms. Miller's testimony seemed "mighty strange." He said he was especially eager to learn more about the waiver that Ms. Miller had received from her source - identified in The Times yesterday as I. Lewis Libby, Vice President Dick Cheney's chief of staff - and why it was something she did not obtain earlier.

Lawyers for Mr. Libby said his waiver was available to her a year ago. Several people in journalism shared the view that the case was confounding.

"We're in an incredibly convoluted world here," said Orville Schell, dean of the Graduate School of Journalism at the University of California, Berkeley.

Michael Getler, the ombudsman for The Washington Post, said: "It's not clear to anybody on the outside what's going on here. On the one hand, she's gone to jail to protect something that's absolutely vital to journalists, and on the other it's still a mystery as to what this is all about and why her role was so central."

Several journalists said they hoped that The Times would publish a full account of the case. "You need to come clean with your readers," said Susan E. Tifft, co-author with Alex S. Jones of "The Trust: The Private and Powerful Family Behind The New York Times." "It's very important to the paper's credibility."

Other journalists said they doubted that Ms. Miller's actions would undercut the desire by confidential sources to speak with reporters. Walter Pincus, a reporter for The Washington Post who also testified to the grand jury in the leak case, said his testifying had "no effect" on sources.

"I still do what I do," he said.

Jim Kelly, managing editor of Time magazine, whose reporter Matthew Cooper testified in the same case this summer rather than go to jail, said, "Looking at what we've managed to publish since then, it is very hard for me to point to any damage that was done to Time magazine with its sources."

Jacques Steinberg contributed reporting for this article.