To learn the identity of the reporters’ confidential source, just ask their lawyer
By Peter Scheer
Honorable Judges of the US Court of Appeals for the Ninth Circuit
Dear Sirs/Madams:
A three-judge panel of this Court will soon consider appeals by the San Francisco Chronicle and two of its reporters from judgments of contempt for refusing to reveal their confidential source for stories about steroid use by professional athletes. Unless you reverse the decision of the District Court, the reporters will go to jail for up to 18 months and the Chronicle will start paying hefty fines it can scarcely afford.
The federal government is obviously determined to find out who leaked to the reporters, Mark Fainaru-Wada and Lance Williams, the testimony of Barry Bonds and other witnesses before the secret grand jury. Fortunately, the answer can be revealed on February 12, when all the lawyers—prosecutors and defense counsel—will be present for an oral argument before you, the judges of the Court of Appeals.
All you have to do is turn to Jonathan Donnellan, the lawyer for the newspaper and the reporters, and order him to tell the Court the name of the confidential source. Donnellan certainly knows who the source is; his clients gave him that information so he could represent them effectively. As a member of the bar, he won’t be so keen on being held in contempt. And no matter how much the Hearst Corporation (owner of the Chronicle) is paying Donnellan, it’s not enough for him to go to jail on his clients’ behalf.
But of course, you won’t order the lawyer to identify the newspaper’s confidential source—and it would never even occur to a judge to ask that question of a lawyer—for the simple reason that the lawyer’s confidential communications with his clients are subject to the attorney-client privilege.
As judges, you understand intuitively that the attorney-client privilege, although it deprives the government of relevant evidence, is nonetheless necessary to encourage clients to confide in their lawyers. Similar privileges, recognized in nearly all states and in the federal courts, protect the confidentiality of a patient’s comments to a psychotherapist, as well as confessions given to a priest, minister or rabbi.
Viewed in this context, there’s nothing radical about the idea of a legal privilege to protect journalists’ confidential sources. The controversy credited with establishing American principles of freedom of the press—the 1735 prosecution of publisher Peter Zenger on charges of seditious libel—arose out of Zenger’s refusal to identify the source of material appearing in his newspaper that was critical of New York’s royal government. Today, as in the 18th Century, reporters must be able to credibly promise confidentiality to an otherwise reluctant source in order to publish an article that reveals information of great public interest.
Leaks that violate grand jury secrecy, while they understandably anger district judges presiding over the grand jury, are no exception: Bob Woodward and Carl Bernstein’s earliest Watergate stories were based on illegal leaks from the federal grand jury convened to investigate the Watergate break-in.
To be sure, some journalists over-indulge sources’ requests for anonymity, or they mistake the sensational and prurient for news of genuine public interest. But the availability of a privilege for confidential sources can’t depend on the relative merits of a given news article.
A privilege for sources, like the privilege for attorney-client confidences, exists not for this case but for the next one. Sources for future investigative news stories need to know, with some degree of certainty, that their identity will remain secret. The requisite certainty won’t exist if enforcement of a reporter’s promise of confidentiality will be decided by an ad hoc balancing of the government’s interest against the press’ interest.
The analogy of the attorney-client privilege is important for still another reason. Reporters, when they choose to honor a secrecy pledge to a source in the face of a court order demanding the opposite, are often accused of placing themselves “above the law.” Judges, in particular, take offense at this seeming disrespect for judicial process.
When deciding this case, you would do well to consider how, in your former lives as lawyers, you might have reacted to an order to disclose a client’s incriminating statement—in violation of the attorney-client privilege. Would you have complied or would you have respectfully refused, putting yourself at risk of jail, in order to protect your client? With just a little imagination, the judges of this Court should be able to appreciate the harsh dilemma in which reporters Fainaru-Wada and Williams found themselves in the District Court.
The US Supreme Court will have the final word on the crucial issue of protection for journalists’ confidential sources. Despite numerous appeals in the last two years, the high Court has yet to give a hearing to the argument for a federal “common law” privilege analogous to protections for communications between attorney and client or therapist and patient.
A ruling by this Court in favor of the reporters and the Chronicle would set the stage for an historic Supreme Court decision. At last, a case on which the Ninth Circuit Court of Appeals and the Supreme Court should, I hope, be able to agree.
Peter Scheer, a journalist and lawyer, is executive director of CFAC.