A new and troubling confrontation between a journalist and a judge arose quite suddenly in Washington last week when a District of Columbia judge ordered a Washington Post reporter jailed for refusing to name the confidential sources of information she had gathered.
This is a familiar issue. In 1989 alone, 4,408 reporters across the nation were subpoenaed to testify in court proceedings. Over the past eight years, on average one reporter has been jailed every year, usually for short periods. But the great majority of such cases turn out to be just "fishing expeditions" by local prosecutors or law enforcement authorities stung by news reports which suggesting they aren't doing their jobs very well. Most often the cases are thrown out of court.
Journalists deem it essential to retain the ability to shield sources. Otherwise, the reporter would quickly become a de facto arm of law enforcement, and "whistle-blowers" or other citizens who felt the urge to call attention to wrongdoing without involving themselves would learn that speaking to a journalist would be as perilous as speaking to a policeman or a prosecutor.
Recognizing these imperatives, 28 states, including Maryland, have enacted "shield laws" -- statutes which protect journalists from being compelled to disclose information they have received in confidence, much in the same way that lawyers, doctors and clergy are protected from compulsory disclosure -- even when the information may involve criminal wrongdoing.
When there is no "shield law," journalists must fall back on the First Amendment to the Constitution, claiming that compulsory disclosure endangers freedom of the press. But the courts have never held that there is an absolute right of journalists under the First Amendment to refuse to testify.
Against this background, consider the complex case of Linda Wheeler, the Post reporter who is now threatened with jail.
In 1986 Ms. Wheeler apparently received a police action plan for an impending drug raid. Although she did not write any advance stories, the raid was botched. Subsequently six white police officers in a department which is predominantly black were disciplined and reassigned. The six claimed in a lawsuit that they TTC were being made scapegoats, on the basis of their race, for the failed raid, to cover for the real cause, which was the leaking of the action plan to outsiders like Ms. Wheeler.
In pretrial hearings two U.S. Park Service policemen testified that Ms. Wheeler told them she had been given the action plan by Washington Police Chief Isaac Fulwood, who was then an assistant police chief. Testifying under oath, Mr. Fulwood denied that he gave the plan to Ms. Wheeler.
At this point Judge Richard A. Levie, who was conducting the trial, concluded that the only person who could resolve this conflict was Linda Wheeler. But when Ms. Wheeler was called to testify, she declined, citing the First Amendment. Washington has no "shield law" comparable to that in Maryland, and doesn't even have much First Amendment case law on the issue.
There is a subtle but important distinction involved here. Ms. Wheeler was not being asked to disclose what someone had told her in her capacity as a journalist; rather, she was being asked what she told two Park Service policemen -- one of whom she subsequently married -- presumably in her capacity as a private individual.
Judge Levie thus concluded that whatever protection Ms. Wheeler enjoyed under the First Amendment was surrendered when she related the information to persons wholly outside the stream of journalism. She had, in effect, "published" the information, the judge concluded.
When she continued to refuse to say whether she had even had a conversation about the case with the two policemen, the judge ordered her jailed for contempt of court. She was saved from that fate only by minutes when lawyers for the Washington Post secured a temporary stay from an appellate court, which will soon make its own determination as to whether Ms. Wheeler can be compelled to testify.
As one who has invoked the shield law myself on past occasions, I find Ms. Wheeler's position a little troubling. If indeed she did not tell the two officers that she had received sensitive material, all she need do is say so. Then she could invoke the journalist's confidentiality privilege persuasively. If she did tell the officers, it is hard to escape the conclusion that the breach of confidence was committed not under compulsion of a court but freely by Ms. Wheeler herself.
Confidentiality is often called "the reporter's privilege." But the more accurate term would be "reporter's duty" -- the duty to protect confidential sources, not only from compulsory disclosure in courts, but from casual disclosure to unauthorized private persons as well.
Ray Jenkins is editor of the editorial pages of The Evening Sun.