Newsday reporter Timothy Phelps refused yesterday to tell a Senate special prosecutor who leaked him confidential Senate material regarding Clarence Thomas. Mr. Phelps was the reporter who first broke the story that Anita Hill had told the Senate Judiciary Committee and the Federal Bureau of Investigation that Mr. Thomas had engaged in grossly improper behavior. Mr. Phelps' refusal was proper and courageous. He could eventually be cited for contempt.
Mr. Phelps used to be a reporter for The Sun. We know him to be a responsible journalist who would not report a story without properly checking his sources -- and one who will not expose those sources once he has given them a promise of confidentiality.
The public knows the importance of using confidential sources, especially in finding out information public officials want to keep hidden. Official misconduct often cannot be discovered without leaks from vulnerable, fearful subordinates. They need to know reporters they are dealing with are trustworthy. That is why many states, including Maryland, have created a statutory right. The Supreme Court has recognized a limited First Amendment right to protect sources. Indeed, the Supreme Court ruled only last ZTC year that a source could sue a reporter for breaking a promise of confidentiality.
It is against Senate rules to divulge confidential material gathered by staff members. It is against the law to divulge confidential material gathered by the FBI. The Senate's interest in protecting confidentiality is somewhat like journalists' interest. Important information senators need to legislate, or to deal with nominations or carry out oversight functions might not be forthcoming if confidentiality were not assured in some cases. So the Senate should try to find out who leaked the material. But that does not mean trashing the First Amendment.
Even if this were a case where other interests were as important as the First Amendment rights involved (and that is a very big if), all alternative methods of finding the leaker should be tried without trying to coerce Mr. Phelps and the other journalists involved. After all, relatively few senators and Senate staff members had official access to Anita Hill's confidential statements and a motive to leak them. The Senate should be able to find out who among such a small group mishandled confidential material, by investigating and questioning them, without harassing journalists and weakening the First Amendment.