Confidentially speaking …

The summer of 2004 has been a chilling one for journalists.

That’s because the nation’s judicial branch has been more willing than ever to limit press freedoms with court action. Half a dozen reporters—many of them from the large media outlets—have been ordered to pay hefty fines and threatened with jail time because they refused to reveal confidential sources.

As anyone familiar with Watergate knows, journalists who can’t otherwise get vital information need to promise confidentiality at times to get key people to talk to them. If reporters can’t promise confidentiality, sources stop providing information.

• A reporter for NBC affiliate WJAR-TV in Rhode Island was found in contempt of court and fined for protecting a confidential source in an investigative story that actually brought down the mayor of Providence, R.I.

• A federal judge held five journalists in contempt for not revealing confidential sources regarding nuclear-weapons scientist Wen Ho Lee, who was suspected of spying for China. When the case against Lee fell apart, the scientist sued the government for having leaked information. A judge ordered the journalists to pay fines of $500 a day until each divulges confidential sources.

• Five reporters were subpoenaed in Washington, D.C., in relation to a federal grand-jury attempt to find out who illegally unmasked an undercover CIA operative’s name to the press. Many assumed the leak was an effort by White House officials to discredit the operative’s husband, Joseph Wilson. The standoff ended last week when the source—chief of staff to Vice President Dick Cheney—released journalists from their confidential agreements. But remember: It wasn’t the judge who let these journalists off the hook.

• Last week, three reporters from the San Francisco Chronicle received notice from federal prosecutors telling them to turn over confidential information related to ongoing stories.

One media organization—Fairness & Accuracy in Reporting (FAIR)—actually encouraged the reporters in the CIA-agent and Wen Ho Lee cases to cooperate with the courts. According to FAIR, the right to protect the identities of confidential sources is only legitimate when it safeguards genuine whistleblowers, not when it shields government wrongdoing.

We live in a time when officials can both hide or reveal information to suit their purposes. But the courts are not the place to distinguish whether a journalist’s good-faith promise to protect a source is merited or not. The right for a reporter to use confidential sources must be defended uniformly, or it has no meaning.

In this post-9/11 era—when the government seems willing to keep too much information secret in the name of national security—a reporter’s right to grant confidentiality is essential. If the media lose this ability, our democracy’s claim to a free press is greatly diminished.