By Irwin Gratz, SPJ President

Regardless of whether you believe anonymous sources are overused or not, there's little denying reporters sometime need to promise confidentiality. Some of the greatest investigative stories of our age have relied on them.

We, as journalists, have relied on an interpretation of our rights under the First Amendment that we are entitled to keep our anonymous sources anonymous. When this premise was tested in court, in the 1972 Branzburg vs. Hayes case, the U-S Supreme Court ruled 5-4 against the premise that a "reporter's privilege" is implied by the First Amendment.

But Justice Lewis Powell, in a concurring opinion, offered the notion of a “qualified privilege:

"The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions."

On that basis, several federal courts protected reporters after performing the balancing test Justice Powell recommended. Then, two years ago next month (August 2003), Judge Richard Posner of the 7th Circuit Court of Apeals, in a ruling involving Michael McKevitt took issues with those court rulings:

Some of the cases that recognize the privilege, such as Madden, essentially ignore Branzburg, ...... some treat the "majority" opinion in Branzburg as actually just a plurality opinion, such as Smith, .......; some audaciously declare that Branzburg actually created a reporter's privilege. Posner's findings have been echoed by several other judges in the past two years, leading to the increased likelihood that prosecutors would subpoena reporters. And they have. In the most notorious case to date, New York Times reporter Judy Miller has been jailed for refusing to comply with a subpoena. So, we, and other journalism groups are turning to a practical solution that has worked in 31 other states: a shield law. Some don’t like a shield law because it will lead to Congress to classify who is a journalist. But SPJ is pushing for language, currently in the draft statute, that would create a “function test.” In other words, whoever you are, if you are doing journalism, you’ll be covered. Others have argued a law passed by Congress can be repealed by a future Congress piqued by our work. So what? That won’t leave us any worse off than we are now. And some still prefer to believe the First Amendment is all the protection we need. But recent court rulings make it clear that’s not true.

Our First Amendment Counsel, Bruce Sanford, says he has no doubt a law would prevent some reporters from going to jail. And it would, we hope, prevent the self-censorship and timidity sure to result if journalists come to believe that prosecutors will come after them on a regular basis and sources fear exposure when they least want it.