Fort Worth Weekly
April 20, 2005
Without protection from being forced to reveal sources, journalists can’t give voice to the voiceless.
By Gayle Reaves
Johnny Lopez didn’t think of himself as a hero. But he had come to hate the corruption that the drug traffic brought to his county along the Texas-Mexico border, drug money that protected dealers and bought politicians and law enforcement agents. In a part of the country where familial and criminal ties are often so strong and pervasive that investigators can make few inroads, he was that rare commodity, a man brave enough to put his life where his mouth was and tell what he knew to law enforcement — and to a couple of reporters from The Dallas Morning News.
For that, he and just about everyone else in South Texas believes, Lopez was shot down outside his house one morning in 1991 by a stranger with an assault rifle.
Though severely wounded, Lopez survived the attack. Because he had given information to federal drug enforcement agents, he got help from the government and was taken into the witness protection program.
Thank goodness he’d helped the feds. Because if Lopez — not his real name — had told his story only to me, I had no witness protection program to offer him. In fact, when a South Texas sheriff sued for libel over stories in the News that I’d helped write, I had only the barest thread of a legal blanket to throw over Lopez’ identity and the identities of dozens of other people who had spoken on an off-the-record basis to me and my two fellow reporters in the course of a year-long investigation into the impact of drug trafficking in the Rio Grande Valley. There was a time during the lawsuit when it looked as if we reporters might have to either go to jail — potentially a jail in a county where we had just written about how many officials, including jailers and sheriff’s officers, were corrupt — or give up our sources. It also looked as though we might have to give up our jobs as well. My then-employer’s support for protecting the gutsy people who’d talked to us didn’t extend as far as the reporters thought it should, even though we explained that people’s lives might be in the balance. So you might say I feel a personal stake in the debate now going on in Austin and around the country about what are called shield laws, which would, in some instances, give reporters the legal right to refuse to reveal their sources — a protection already in force in 31 other states and the District of Columbia. Pushed partly by what seems like a Bush administration campaign against reporters who seek to protect their sources, there are now bills before the Texas Legislature and the U.S. Congress to create such laws at the state and federal levels. More than a dozen reporters around the country, including writers at The New York Times and Time magazine, are either under threat of jail sentences or have actually been detained, mostly in federal cases, because they will not turn over their sources of information to law enforcement. Prosecutors insist that journalists have no right to withhold such information and that prosecutors need to be able to compel reporters to talk to continue investigations of various crimes. Judges, by and large, have supported that view in the last few years.
The issue is causing great wringing of hands in news media circles. Outside of the editorial page, we journalists generally are loath to lobby for any help from the governmental bodies that we cover and with which we are frequently in conflict. And for decades, reporters believed, with some reason, that they had something better than a mere law — they had a constitutional right to protect their sources, and new laws might actually narrow their rights, as opposed to preserving them. But the courts’ support for the view that the First Amendment gives journalists a right to shield their sources seems to have faded. And what has replaced it, as Paul McMasters of the First Amendment Center wrote recently in News Media and the Law, is a “dangerously out-of-kilter dynamic between the press and prosecutors.”
So lots of journalism groups have signed onto this, including a national journalists group to which I belong, as well as its local chapter. I signed on in part because I believe press freedoms are increasingly important in a country where information and government are less and less open all the time and because I don’t want any reporters to have to go to jail for keeping promises to sources. But mostly, I think, it’s a debate worth having because of the Johnny Lopezes of the world. If they cannot rely on an independent press for help — in, say, exposing corrupt government officials — then what happens to all of us?
The notion that the First Amendment shields reporters’ sources took root in a 30-year-old U.S. Supreme Court case. Justice Byron White wrote in a 1972 opinion in what’s known as the Branzburg case that reporters must be given some protection under the U.S. Constitution because without that, “freedom of the press could be eviscerated.” He said that official harassment of the press should not be tolerated. Unfortunately, the opinion he wrote was part of a muddy ruling that has had judges and lawyers scratching their heads for 30 years.
“After the Branzburg case, news media lawyers were able to convince the courts through the 1970s and most of the ’80s that there was some [U.S.] Supreme Court recognition” of the reporter’s privilege, said Paul Watler, a First Amendment attorney in Dallas who has been working on this issue for about 15 years, on behalf of the Texas Association of Broadcasters (and who represented me and my fellow News reporters in the South Texas case). “But in the next 15 years they began chipping away at that notion.”
Following the Branzburg ruling, many states began passing their own versions of shield laws. Some are absolute, stating that journalists cannot be legally compelled in any situation to reveal their sources. Others provide a conditional privilege, saying that journalists can keep their sources confidential in some situations but can be compelled to reveal them in others. Under conditional privilege, journalists can still be compelled to reveal their sources if prosecutors show, for instance, that they cannot make a case without that information or if journalists are eyewitnesses to violent crimes.
In many places, including Texas, newspaper groups resisted shield laws for years. “A lot of people in the newspaper industry felt they didn’t need a legislatively enacted shield law because the First Amendment was sufficient,” Watler said. “That’s a fine idea. But the reality has been over the years that courts in Texas and elsewhere have refused to adopt that view.”
And so, since about 1990, American journalists, including a significant handful of Texans, have been going to jail with disturbing frequency rather than reveal their sources or turn over notes or other material to prosecutors in what’s sometimes nothing more than an a fishing expedition for information that officers already have or could get on their own.
A journalists’ shield law is no esoteric idea to Brian Karem. He could have used one about 15 years ago to protect some very frightened people, as well as his own ass. The former San Antonio tv reporter didn’t go to jail just once to protect his sources. He went four times.
Karem, who has since written several books and become managing editor of a suburban Washington D.C.-area weekly paper, had numerous run-ins with authorities over sources when he worked in Texas. A Laredo grand jury in the mid-1980s subpoenaed him to ask who his sources were on one story, but when he wouldn’t tell, the grand jurors let him go with “a stern warning” that they’d find out anyway. And when he worked in San Antonio for KMOL-TV, he said, “I had constant run-ins with police over sources.”
Then came the case in 1990 in which several of Karem’s confidential informants helped set up a jailhouse interview with a man who had been arrested for the murder of a police officer. The man confessed to Karem that he had shot the officer but said it was self-defense. The grand jury wanted to know who had set up the interview, but Karem wouldn’t tell.
Two of his sources eventually came forward voluntarily. But the third feared retribution from the killer’s family. “She made it quite plain that … she would be under threat of death” if her identity were revealed, Karem said. “She went above and beyond the call to help me out. I would never give up that source.”
He went to jail four times for contempt, while lawyers fought the case up through the courts. “I spent two weeks in jail the last time, and I can tell you it’s a harrowing experience,” he said. “No one goes to jail for fun or to further their career. When you go to jail, you give up everything, including your own underwear. You’re wearing someone else’s underwear, that’s probably been worn by hundreds of people and has the stains to prove it.”
The worst part of the experience, he said, “was the sudden realization that you have no control over anything you do in any part of a day. … You are in a cage with a bunch of smelly guys who are in there for lots worse reasons than you are. I slept with my butt against the wall, and anyone who took a swing at me, I fought,” he said. “One kid, nicknamed Baby Huey, thought I was being treated special because I was a reporter. He took a swing at me. I hit him over the head with a mop, and after that, we got along fine. As G. Gordon Liddy says, ‘You can’t be the bitch.’”
Eventually, his final confidential source moved out of state. When she felt safe, she came forward and revealed her identity, or Karem might have stayed in jail a lot longer.
When he hears about the current efforts by various prosecutors to force reporters to reveal their sources, Karem said, “It saddens me that 12 or 14 years down the line, we’re still having to go through what we went through years ago.” His strong feelings about the issue still come through, especially in light of what he sees happening now. “What we do is a vital public service,” he said. “I believe we shouldn’t need a shield law, but I realize the logistics and that the reality is that we’ve got to have [one], something that says, ‘Hey, morons. Remember the First Amendment?’ This is something that gives teeth to the First Amendment.”
Karem saw first-hand the dangers that media law and First Amendment specialists point out about the practice of prosecutors trying to get names — and in many cases, notes, recordings, videotapes, and phone records — from reporters. “What really bothers me is that the police and investigators are trying to use us as a tool,” he said. “I always ask them from the witness stand” why the government doesn’t do its own investigating instead of trying to piggyback on reporters’ work, a sentiment mentioned repeatedly by reporters who’ve been through a sources fight. “They have subpoena power, and I don’t. They have much greater abilities to attract, dig up, and ferret out information than I do. What do they need me for? They’re lazy. They’d rather turn a reporter upside down and shake them out than go and do their job. That’s the dirty little secret that everybody glosses over.”
Robert Kepple sees that process just the opposite from Karem. Kepple is the executive director of the Texas District and County Attorneys Association, the prosecutors group that is leading the charge against the Texas shield law legislation.
“It’s real simple,” he said. “A shield law, like any privilege, takes relevant and material information and hides it from the fact-finders in a case. There are very few privileges that exist in Texas law that apply to criminal cases. … The issue right now is whether there is such a public interest in a journalist’s privilege as to justify basically hiding evidence.” With all due respect to journalists who testified for it, he said, “prosecutors don’t believe there’s been such a showing.” Most of them, he said, feel that whatever value there is to society in journalists being able to hold back potential evidence, “it does not outweigh that need to find out the truth in a criminal matter.”
Kepple said that journalists like to emphasize the confidentiality protection needed for government whistleblowers. “But that’s not where most of the fights are with prosecutors,” he said. News reporters and photographers publish or air only a fraction of the information they gather for most stories, he pointed out. Prosecutors are usually asked for the rest of that “evidence,” he said — that is, other pictures, other film, other notes. And names.
He used the example of a television crew setting up what amounts to a new media sting — going on the internet and telling people that a young girl will be alone at a certain address and is looking for sex, then filming the guys who drive up in response. In that situation, prosecutors might believe that the men’s actions constituted a crime, for which the tapes would be evidence.
Kepple maintains that, despite what many courts have held in the last few decades, the “argument of journalists needing to be able to promise confidentiality was overblown,” and there is no privilege for journalists under the First Amendment.
In that last point, those who argue for the Texas shield law, and indeed the proposals in Congress, would agree with him, that there appears to be no recognized constitutional protection, and that’s why legislation is needed. “He’s making our argument for us,” one proponent said.
The war on journalists’ sources cranked up to ramming speed after 9/11, but the Bush administration had started applying the heat even before that. And it started in Texas, with a woman who had never written a single news story and who had already voluntarily cooperated with police.
Vanessa Leggett taught English and legal writing at the University of Houston, but she was fascinated by murder investigations. Before 2001, she had only published a couple of articles in FBI crime manuals. And for more than three years, she had been researching the strange case of the Angleton family. Doris Angleton had been found dead in her Houston home in 1997, shot numerous times. Her brother-in-law, Roger, told police that his brother Robert — reportedly known to be a longtime informant for the Houston Police Department — had hired him to carry out the murder. But Roger reportedly committed suicide in jail. Robert was charged, tried, and, in 1998, acquitted in his wife’s death. In 2002, however, he was re-indicted on federal charges connected with the murder.
When Roger Angleton was still in jail in Houston in connection with the state case, Leggett was allowed to interview him repeatedly. According to articles published in American Journalism Review and elsewhere, she eventually racked up 50 hours of recorded interviews with him, as he told her story after story about himself and his brother. When the two brothers were indicted by a Harris County grand jury, those tapes and other records were subpoenaed. Leggett and her attorney, Mike DeGuerin, agreed to turn over the tapes, and Houston police agreed not to share them with any other agency. When a judge ruled them inadmissible as evidence, they were returned to Leggett. As it turned out, however, police had made copies of the tapes, and when the FBI started its own investigation — according to DeGuerin — the cops, despite their promise, gave copies of the tapes to the feds.
Leggett continued to research the case for a book she hoped to write, and she talked several times to FBI agents who were working on the investigation. In late 2000, the FBI changed tactics: They asked Leggett to become a paid informant for them. She said no. Months later, in June 2001, the FBI made a counter “offer”: They subpoenaed her tapes and notes — they wanted the originals and all copies, and they made no promise to give any of it back.
Fearful that her notes would reveal confidential sources, that the government was trying to control what she published and when, and that she would be left with no results of her years of research, Leggett refused. She was charged with contempt of court and went to jail, where she stayed for more than five months, until the term of the grand jury ran out. Her 168 days behind bars are the most ever served by a writer protecting a source.
Robert Angleton, meanwhile, fled the country. In the extradition process to bring him back, the government agreed to drop the murder charge. He was then charged with tax evasions and other crimes connected to his flight and pleaded guilty to some charges and was convicted on others. Leggett’s book needs an ending — and so publication has been delayed until after Angleton’s sentencing, expected this summer.
Leggett said that she had been ambivalent about shield laws, but “in the final analysis, I’m not in favor of them.”
“No doubt,” she continued, “the situation has reached critical mass,” with the contempt citations against journalists, but “the government is saying we have no privilege — so our answer is to ask them to define the privilege. It’s no different than when Rosa Parks refused to give up her seat because she knew the Fourteenth Amendment had her back. In the long run, journalists should understand that the First Amendment backs them. Freedom comes at a price. We just need to keep our seats.”
Leggett said she had agreed to turn over specific tapes to the police because her lawyer told her she probably could not win a fight to withhold them. The information the police sought then was “relevant and specific,” and the police had agreed to return the materials to her. But when the FBI filed a subpoena, she said, their request was broad rather than specific, and there was no agreement to return any material.
While Leggett was dealing with the FBI and a Houston federal grand jury, television reporter Jim Taricani of Providence, R.I., was wrestling with another confidentiality challenge. A federal judge ordered him to reveal the source who had provided him with a videotape showing an ex-city hall official taking a bribe in an undercover FBI sting. Taricani refused. In March 2004, the judge ordered Taricani to reveal the source or face fines of $1,000 a day. In November, when Taricani’s appeals had failed and he still refused to comply, the judge exchanged the fines for an ultimatum: Give up the information in two weeks or go to jail. The reporter again refused and was convicted and sentenced to six months of home confinement — despite the fact that, as in Leggett’s case, the federal prosecutor revealed that he already had the information he was seeking, in this case, the name of Taricani’s source. Taricani was recently released early from his home confinement sentence.
Even more visible than Taricani’s prosecution has been that of Judith Miller of The New York Times and Matthew Cooper of Time magazine, two of the reporters caught up in the Valerie Plame case. Plame, wife of former U.S. diplomat Joseph Wilson, was revealed, by syndicated columnist Robert Novak in July 2003, to be an undercover CIA agent. Novak’s column said he got his information from two senior members of the Bush administration; the leak is widely believed to have been an act of retaliation against Wilson’s public criticism of Bush officials’ allegations about attempts by Iraq to buy uranium for nuclear weapons. But instead of the Bush administration, it was Miller and Cooper who came under scrutiny. A federal appellate court has rejected their claim to journalist privilege and ordered them to reveal their sources. If further appeals fail, both face jail time.
In the Plame case, Watler, the First Amendment lawyer, pointed out that even Miller and Coopers’ lawyers were not allowed to see the evidence against them. “Generally speaking, we don’t allow secret evidence in this country,” he said. “We got rid of the Star Chamber some centuries ago, hopefully.”
The general public might think that the new campaign against reporters and their sources is a function of post-9/11 security worries. But few of the cases have anything to do with national security or terrorism — and, as in Leggett’s and Taricani’s cases, the most important information that federal prosecutors have sought with their subpoenas they either already had or were able to get without reporters’ help. Moreover, some prosecutors are now seeking more than just the scribbles in a reporter’s notebooks; the U.S. Justice Department secretly subpoenaed the telephone records of an Associated Press reporter, John Solomon, in an attempt to find out who Solomon was talking to about the investigation of a New Jersey Congressman.
McMasters, of the First Amendment Center, calls the series of cases a deluge. “Federal officials … have gone after telephone records and reporters’ notes and reportedly have tried to enlist journalists as informants, [keep] certain information from being reported, and tried to force reporters off stories they have covered for months or years,” he wrote. These acts, he said, “have seriously compromised the ability of the press to inform the public about urgent matters of public policy and government actions.”
That “deluge” has prompted members of Congress to file several federal shield law bills. All would provide an absolute privilege against being forced to reveal the identities of confidential sources. A version proposed by Sen. Richard Lugar, an Indiana Republican, and a bipartisan pair of House members, would not protect freelance journalists who are working without a contract to a recognized news organization or publisher, and it would not protect those who publish solely on the internet — a major cause of concern to bloggers and publishers of webzines. Another bill, by Sen. Chris Dodd, would cover journalists writing for web-only news sites. The bills are expected to come up for debate in the fall.
The question of who would be covered is another reason that many journalists are ambivalent about shield laws. Few journalists want the federal or state government making decisions about who is or isn’t a journalist. That’s one of the reasons that David Hanners, my former colleague on the South Texas stories, is still on the fence about shield laws. And it’s one of the reasons why the national Society of Professional Journalists only agreed recently to support the federal shield law bill, “with great consternation,” said SPJ President-Elect David Carlson.
In Texas, legislators on both sides of the capitol building had the same reaction to attempted prosecutorial outing of journalist sources as Dodd and the other Congressional shield bill sponsors. Both Sen. Rodney Ellis, a Houston Democrat, and Rep. Aaron Pena of Edinburg filed their versions of shield law bills in Austin without prompting from journalists. Which was just as well — journalist groups in Texas, like those around the country, have been a long time in coming around to the idea of giving up their frail hopes of constitutional privilege and jumping to the smaller but potentially sturdier craft of shield laws. The broadcasters group has long supported the idea of a shield law in Texas; this year, for the first time, the Texas Daily Newspaper Association, as well as the Texas Press Association, representing smaller papers, joined them.
Watler and Jeremy Warren, press secretary to Ellis, both acknowledge that the bills face an uphill battle, especially because of opposition from politically influential prosecutors. Already, Ellis’ bill has been pretty well gutted — approved in committee but only after it was amended to the point that Ellis no longer supports it in its present form. “We’re in the process of trying to gauge whether we can get it changed back into its original form or at least something much stronger than the amended version,” Warren said. “Our goal is to get it to the floor and try to amend it back.” If it can’t be fixed, Ellis will pull it down, he said. “If in reality it’s a sieve and not a shield, what’s the purpose?”
The Texas bills would provide journalists with a qualified privilege — that is, they could legally keep their sources confidential unless prosecutors showed, by a preponderance of the evidence, that the information they could provide was necessary to a case, or unless reporters were eyewitnesses to crimes involving violence, property damage, or a breach of the peace.
Walter and Warren acknowledge that the fight may well have to be continued two years from now, when the legislature meets again. “We got kind of a late start this time,” Warren said. “All three major media groups weren’t fully signed on until a little over a month ago. But I think we have a really good chance next session. We will have this coalition together, and we can spend two years educating the legislators and the people on the need for this.” Warren said Ellis is convinced that if journalists cannot protect their sources, those sources in many cases will not come forward, and important stories will never get written. Accepting information from people who don’t want their names connected with it “is what journalists do every day. Could be about the city council or the dog catcher.” It’s important for the public that reporters have the freedom to obtain that kind of information, he said. “Protecting sources is key to that.”
In the libel suit in South Texas, my fellow reporters and I were saved from possible jail time when an appellate court ruled, in 1991, that a qualified privilege for journalists did exist and that the sheriff’s lawyers had not overcome it. Unfortunately, as Watler says, that ruling was a “tiny island out there, surrounded by very turbulent seas.” Subsequent case law has gone in the other direction.
We never revealed a source. But in the very small world of Starr County, the sheriff and his lawyers made a couple of guesses of who some of our sources might be and started subpoenaing those people for pre-trial depositions.
Belo, the company that owns the News, was still hurting from a multi-million-dollar libel judgment against another of their media properties, obtained in part because a key source reneged on what he’d earlier told a reporter. Gun-shy, the Belo lawyers insisted that, if the sheriff did guess right and subpoenaed any of our sources, and if the source denied having talked to us, they wanted to go after that person right away, during pre-trial depositions, proving without interview notes that he or she indeed had been a source.
The reporters were aghast. We knew that in South Texas that could spell every kind of trouble for our sources. In a dirt-poor county where, if you didn’t take drug money, your job possibilities consisted mostly of government jobs or field labor; at the very least their ability to support their families would be in danger. And it was obvious that their lives might be as well. It’s the only place I’ve ever been where law enforcement sources suggested that reporters might consider carrying guns.
And so we fought our employers. We refused to take part in potentially outing the people who had helped us so much. In the end, we had to get counsel separate from the newspaper, since our interests were no longer totally the same. The newspaper did agree to pay for our lawyer — a major point that frankly made it much easier for us to hew to our principles. In the end, we settled the case. Although the sheriff himself received nothing, his lawyers did, and the newspaper made a contribution to a local children’s agency that the sheriff then took credit for. And the settlement, as much as we hated it, also protected our sources. If the case had gone to trial, we feared that the newspaper — which claimed ownership of all our notes and materials — might have outed our sources even without our agreement. For reporters, the bitter pill wasn’t the settlement. It was having had to battle our own bosses as well as the sheriff, to protect our sources. It was the chill that the entire situation put on the willingness of reporters at the News to deal with confidential sources, knowing the paper might not protect them — and it was hearing that Johnny Lopez had paid an extremely high price for talking about corruption, to us and to law enforcement.
Another of our sources from those days told me on Tuesday that, if we had been forced to reveal our sources back then, “I think people would have been killed.” But the stories were worth the risk that he took in talking to us, he said. The stories “made a world of difference” in his part of South Texas, he said.
Years after our stories ran, the sheriff was arrested, along with a justice of the peace and five deputies, for taking payoffs from a bail bondsman. He pleaded guilty and spent time in prison. But things haven’t changed that much in Starr County. The sheriff long ago got out of prison and is working for the county again. Drugs are still major business. And reporters still need to be able to promise confidentiality to sources — and be able to make it stick. Because people in Starr County, like the rest of the country, can’t always trust the government to right wrongs — especially in those cases when government officials themselves, with their badges, guns, secret court orders, and subpoena powers, are the problem. People need to be able to call the press.