Journalists are working in a dark and dangerous era

This is not a good time to be a journalist.

Anywhere.

Not only have more than 50 news media personnel died in Iraq since President Bush began bombing Baghdad 20 months ago, but in recent months, Paul Klebnikov, editor of the Russian edition of Forbes magazine, was fatally shot as he left his Moscow office, and Roger Mariano, a crusading broadcaster in the Philippines, was shot 10 times in the back and several more times in the head and left for dead along a rural road en route home. Then, in Turkmenistan, government agents detained Saparmurad Ovezberdiyev, a reporter for Radio Free Europe/Radio Liberty, for several days, blockaded his home for weeks and harassed his family and friends.

Meanwhile:

* A researcher in the Beijing bureau of the New York Times has been arrested on charges of revealing state secrets to foreigners.

* The president of Brazil has triggered widespread protests by announcing plans to create a news council that would “orient, discipline and monitor” the country’s journalists.

* Iran has arrested several journalists and blocked hundreds of pro-democracy websites.

Given all this -- and given the 47 line-of-duty deaths of journalists worldwide this year -- it might seem both parochial and insensitive to complain about the plight of journalists in the United States. After all, public and political hostility toward the media notwithstanding, they’re not shooting reporters here. Not yet, anyway.

But reporters in this country are under siege -- not a military siege, not a life-threatening siege, but a siege nonetheless, mounted largely by the federal government. What this siege comes down to, for the most part, is that many reporters, in different cases, have been threatened with jail sentences unless they reveal their confidential sources.

With the reelection of Bush, the most media-averse president in recent memory, the siege only figures to get worse.

“My level of concern just keeps accelerating, especially with the announcement of Alberto Gonzales as the [proposed] new attorney general,” says Lucy Dalgleish, executive director of the Reporters Committee for Freedom of the Press. “He’s been the architect of numerous secrecy initiatives at the White House and back when he was in Texas, during Bush’s first term as governor. Winning the election will give the Bush administration the sense that they can do this with impunity. That means more government workers will become whistle-blowers, leaking things to the press, and the new attorney general will be just as willing [as John Ashcroft], if not more willing, to subpoena reporters.”

Keeping secrets

I’ve written several times that I think reporters use too many confidential sources -- that the media too easily and too frequently grant anonymity to sources who neither require it nor deserve it. I’m firmly convinced that this practice contributes significantly to the decline in credibility the media is now suffering.

But I’m just as firmly convinced that anonymity -- reliance on confidential sources -- is sometimes essential if the media are to fulfill their professional obligation to keep the public fully informed about what government and corporate America are doing.

Watergate -- Deep Throat -- is the classic example of this necessity, of course, but there are lesser, and less well-known, cases in which sources have given journalists important information, information beneficial to society at large, requesting anonymity because they legitimately feared for their jobs, their security, their families, their lives.

Not all sources who request anonymity are so public-spirited, of course. Take the case of the White House official(s) who last year told syndicated journalist Robert Novak and several other journalists the identity of CIA operative Valerie Plame.

The prevailing view in Washington is that Plame was “outed” to punish her husband, retired diplomat Joseph Wilson, for having accused the Bush administration of “misrepresenting the facts” about possible attempts by Saddam Hussein to buy uranium in Nigeria before the war in Iraq began.

In addition to punishing Wilson -- and undermining his credibility -- outing his wife was thought to send a message to other government insiders about the dangers of criticizing the administration or talking to the media.

It’s difficult to know if any of this theorizing is correct, since Novak isn’t talking and his source(s) remains unnamed. Patrick Fitzgerald, the special prosecutor investigating the leak to the press -- disclosure of Plame’s identity could be against the law -- apparently hasn’t been able to locate and identify the leaker. So he’s trying to have Judith Miller of the New York Times and Matthew Cooper of Time magazine jailed for contempt because they won’t identify the leaker for him.

A hearing on this issue is scheduled for Dec. 8 before Federal District Judge Thomas Hogan.

What makes this case especially alarming is that Miller never wrote about Plame. Novak did. But Novak -- a Bush supporter -- hasn’t been threatened with prison.

In another, unrelated case, a civil suit filed against the federal government by nuclear scientist Wen Ho Lee, Judge Thomas Penfield Jackson has held five reporters, including Bob Drogin of the Los Angeles Times, in contempt and fined them $500 a day for refusing to reveal their confidential sources. And in Providence, R.I., U.S. District Judge Ernest Torres has found Jim Taricani, a television reporter for the local NBC affiliate, in contempt because he refused to name the person who gave him a videotape of a city official accepting an envelope filled with cash.

Reporters in 31 states, including California, are protected by shield laws that generally enable them to refuse to disclose -- even in a court of law -- the identity of sources to whom they have promised confidentiality.

Chinks in the armor

Shield laws exist so that sources with important information can come forward without fear of exposure or reprisal -- and so reporters can avoid being seen as participants or partisans in any litigation.

The shield laws are not, however, absolute.

In 1972, the U.S. Supreme Court ruled that requiring journalists to testify before a grand jury did not necessarily abridge the 1st Amendment guarantees of freedom of the press. Essentially, the court ruled, 5 to 4, that freedom of the press had to be weighed against the requirements of the criminal justice system case by case.

The court left it up to individual states to create their own shield laws, if they wanted to. A number of states already had such laws, and about 20 subsequently enacted them.

That’s precisely why the recent increase in subpoenas to reporters has come in federal court, not state courts; although shield laws vary by state, most afford more protection than the 1st Amendment, and in federal court, it’s the less-protective 1st Amendment that prevails.

Some in the media think it’s time to push Congress to enact a federal shield law. But a Republican-dominated Congress seems unlikely to do that, especially at a time when public hostility toward the media makes it unlikely that the media will be able to rally much support for such legislation.

That would leave the media at the mercy of Bush and Gonzales, a decidedly unhappy prospect for both a free press and a free society.

David Shaw can be reached at david.shaw@latimes.com. To read his previous “Media Matters” columns, please go to latimes.com/shaw-media.