It has been an anxious time for American journalists. In several high-profile cases, and many less known ones, reporters have been subpoenaed by federal judges, special prosecutors or civil litigants and threatened with jail when they refused to name their confidential sources.
The most famous episode surrounded the outing of CIA agent Valerie Plame. Rather than disclose her source, New York Times reporter Judith Miller spent 85 days in jail. In another case, Josh Wolf, a freelancer, refused to surrender video outtakes (later posted on his blog) of an anti-G8 protest in San Francisco to a judge, spending 226 days in jail.
"There's a record number of subpoenas out there," said Linda Foley, who heads the Newspaper Guild. "And while the Plame case was about national security, the Balco case [two reporters who faced jail for protecting a source in a steroid scandal] was about sports. It seems like open season."
Protecting sources is a fundamental duty for journalists. Yet numerous cases, some ongoing, have shown that media confidence in the first amendment, which protects free speech, is misguided. US federal courts have repeatedly cited a 1972 Supreme Court ruling, Branzburg versus Hayes, that said there is ultimately no First Amendment privilege for reporters.
Following this ruling, 32 states and the District of Columbia adopted shield laws to protect reporters. In some, privilege is absolute. In others it is conditional. Judicial interpretations that recognize the need for protection serve the same purpose in all the other states, except in Wyoming, the home state of Vice President Dick Cheney, whose adversarial relationship with the media echoes the dark dynamic between the Fourth Estate and former US president Richard Nixon.
Nonetheless, reporters were blindsided when free-speech rights failed to stem contempt charges.
"We all assumed the First Amendment protected news gathering in this way," said Kevin Goldberg, an attorney for the American Society of Newspaper Editors. "It's been a real shock to find out we were wrong."
Indeed, US reporters might fare better in Britain. Both the Contempt of Court Act and European rights laws acknowledge the right to protect sources.
"The European court of human rights' Article 10 has been a bulwark of freedom of expression," said Dan Tench, a partner at Olswang law firm in London. "It's conferred a significantly greater protection than domestic courts would have done."
While US journalists have "considerably more latitude" in libel or defamation issues, Tench believes the Judith Miller case simply would not arise in the UK.
"She would clearly be protected and would not have to disclose her source. She certainly wouldn't be thrown in jail. That prospect would appal the judiciary and indeed the British government," he said.
Certainly, the Bush administration's animus towards the media, most publicly in the Plame case, has been sobering for those in the industry; although journalists have also been subpoenaed in civil lawsuits brought against the government, such as those of Wen Ho Lee (
"It certainly has had a chilling effect," Foley said.
This is hardly in the public interest. While big media have deep pockets for legal fights, smaller players, fighting to survive as new media roils the industry, may ignore contentious stories rather than risk litigation and jail.