By Rachel Smolkin
American Journalism Review
October/November 2005
Excerpt:
A number of news organizations, including the two at the center of the Plame case –- Time magazine and The New York Times -– are consulting with attorneys and investigative reporters to find ways to guard sources’ identities if notes and e-mails are subpoenaed. The reviews of standard journalistic techniques have raised sensitive questions, some of which are not resolved in the law and have produced no clear consensus among media lawyers. Who owns a reporter’s notes? Should news organizations hand out laptops or external hard drives to give individual journalists -– rather than the company –- control over their work? How long should a reporter save notes? How far should a news outlet go in protecting a source and defying a court order?
As editors and lawyers revise internal policies, the prosecutor’s actions in the Plame case and the dramatic jailing of Times reporter Judith Miller have rekindled efforts to enact a federal shield law that would protect reporters from revealing sources in most situations. Within the last 18 months, more than two dozen reporters have been subpoenaed or questioned about their confidential sources in cases before the federal courts, according to the Newspaper Association of America (see “Under Fire,” February/March 2005).
The NAA, which represents newspaper publishers, is leading a coalition of more than 90 media and journalistic advocacy groups in pressing Congress to pass a shield law. As part of that effort, NAA staffers spent early August trying to document the dreaded “chilling effect” of the case so far.
