It’s perhaps the most famous scene in the Watergate movie “All the President’s Men”: Robert Redford/Bob Woodward meets the shadowy figure of Deep Throat/Hal Holbrook in an empty parking garage because both fear that any telephone conversation they have will wind up in government hands.
Fast-forward three decades and every real-life reporter in America had better be able to find their way to the nearest parking garage, because a 2-1 New York federal appeals court ruling yesterday will render nearly impossible a journalist’s ability to assure a source anonymity — at least if the reporter is using his work telephone.
From this morning’s New York Times, whose reporters are at the heart of the ruling: “The case arose from a Chicago grand jury’s investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government was planning to take against two Islamic charities, Holy Land Foundation in Texas and Global Relief Foundation in Illinois. Though the government contended that calls from the reporters tipped off the charities to impending raids and asset seizures, the investigation appears to be focused on identifying the reporters’ sources. No testimony has been sought from the reporters, and there has been no indication that their actions are a subject of the investigation.”
The court’s ruling, unless reversed on appeal, will give government investigators access to the reporters’ telephone records.
“We see no danger to a free press in so holding,” offers Judge Ralph Winter for the majority.
Which is just another instance of justice being blind. As is so often the case in these First Amendment issues, the implications of the ruling reverberate far beyond the particulars of the case at hand.
Judge Robert Sack, writing in his dissent, explains perfectly the problem such a ruling causes a free press:
“Reporters might find themselves,” he says, “as a matter of practical necessity, contacting sources the way I understand drug dealers do to reach theirs — by use of clandestine cell phones and meeting in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate.”
Certainly not the public’s.
Congress needs to act, no matter how unpopular the press may be these days. Only a clearly written federal shield law will give reporters and their anonymous sources the confidence they need to communicate outside of darkened parking garages.
