E-Mail This Article to a Friend A freer press The persecution of Providence reporter Jim Taricani shows why we need a federal shield law

NEARLY FOUR YEARS ago, WJAR-TV (Channel 10), in Providence, broadcast an FBI surveillance tape showing Frank Corrente, a top aide to the city’s then-mayor, Vincent "Buddy" Cianci, accepting a $1000 bribe from a government informant. WJAR and the investigative reporter who had obtained the tape, Jim Taricani, performed a public service by showing viewers exactly what had been going on in Rhode Island’s capital city. Eventually Corrente, Cianci, and others were convicted on federal corruption charges and sentenced to prison.

Yet today, in a perverse twist, Taricani himself faces as much as six months in prison. Taricani was found guilty last week of criminal contempt of court. His crime: refusing to tell investigators the name of the person who had supplied him with the tape. Taricani had promised confidentiality to his source, who had, after all, violated a court order so Taricani could broadcast his report revealing the truth. Now the 55-year-old Taricani — who underwent a heart transplant in 1996 and who must take powerful anti-rejection medication every day — is about to pay a heavy price for, as he puts it, "simply doing my job."

Taricani and his lawyer maintain that he has a First Amendment right to protect his confidential source. In fact, he does not, and US District judge Ernest Torres was correct — if shamefully narrow-sighted — in ordering Taricani to violate the confidentiality agreement he had made. In 1972 a bitterly divided five-to-four Supreme Court decided, in the case of Branzburg v. Hayes, that journalists have the same responsibility to testify in court cases as do any other citizens. But because one member of the majority, Justice Lewis Powell, joined the four dissenters in suggesting that journalists should enjoy at least a limited ability to protect their sources, the courts for more than 30 years have generally targeted reporters only as a last resort, after all other means of obtaining the information being sought have been exhausted. Lately, though, it appears that the balancing test has been tilting increasingly in favor of government investigators and against freedom of the press.

In the matter of Valerie Plame, the former undercover CIA operative whose identity was leaked to syndicated columnist Robert Novak, several journalists — including Time magazine’s Matthew Cooper and the New York Times’ Judith Miller — have been threatened with jail if they refuse to reveal the identity of their source. Miller hasn’t even written about the Plame affair, and it’s a mystery how she came to the attention of special prosecutor Patrick Fitzgerald, who’s investigating the leak; speculation centers on the possibility that her phone number came up on records he’s received, but no one knows for sure. Certainly by targeting journalists, rather than the White House officials suspected of blowing Plame’s cover — not to mention Novak — Fitzgerald is sending a chilling message to the press. (As for why Novak himself hasn’t been called to testify, that’s a mystery as well. Neither he nor his lawyer is talking. Perhaps Fitzgerald is saving him for last. There’s even a possibility that Fitzgerald hopes to bring charges against Novak, though that seems unlikely.)

In the matter of Wen Ho Lee, the former Los Alamos nuclear scientist who was wrongly accused of espionage, five journalists have been ordered to reveal their sources so that Lee may pursue an invasion-of-privacy suit against the federal government.

One partial solution to this rising wave of court-ordered harassment against the media is a federal shield law explicitly granting journalists the right to protect their sources. Currently 31 states and the District of Columbia have shield laws in place. (Massachusetts, unfortunately, is not among them. Rhode Island is, but that’s of no help to Taricani, because the Cianci matter was a federal rather than a state case.) These laws vary in strength, and none protects journalists in all circumstances. But now Senator Christopher Dodd, a Connecticut Democrat, is proposing a federal shield law with some real bite.

Dodd’s bill, the Free Speech Protection Act of 2004, would provide absolute protection for journalists’ sources; according to Dodd’s office, the protection would apply even if the journalist had not promised confidentiality. The bill would also provide partial protection for a journalist who’s been told to turn over notes, documents, photographs, and other information obtained in the course of newsgathering. In a statement, Dodd said, "This legislation is fundamentally about good government and the free and unfettered flow of information to the public. The American people deserve access to a wide array of views so that they can make informed decisions and effectively participate in matters of public concern."

At press time, Dodd’s office said the text of the bill was not yet available. On the surface, though, the Free Speech Protection Act sounds like a step in the right direction. It may be constitutionally suspect, at least in part. After all, a defense lawyer seeking the name of a journalist’s source who might be able to provide exculpatory information about his client need only point to the Sixth Amendment guarantee that the accused is entitled "to have compulsory process for obtaining witnesses in his favor." But if priests and lawyers can be protected from having to give up confidences, surely the free-speech rights envisioned by the First Amendment demand that journalists be protected as well.

Of course, it goes without saying that the Dodd legislation faces an uphill battle. A Republican Congress is almost certainly not inclined to pass such a bill, nor would President Bush be inclined to sign it. There’s an additional obstacle as well, and it’s one for which the media have only themselves to blame. For more than a generation, as deregulation has allowed news organizations to come under the control of ever-fewer, ever-larger, and ever-more-profit-hungry corporations, the notion of the press as a public trust has increasingly been supplanted by the reality of a rapacious media seeking to obtain more and more of those profits through sensationalism, sleaze, and the invasion of people’s private lives.

Persuading the public that the work we do is vital to the functioning of a democratic society is a difficult case to make in the current environment. Journalists such as Jim Taricani, though, show why the press remains a crucial, if tarnished, check on the government. And if there’s any doubt that we are far more protected from governmental abuse with a free and unfettered press, even a tarnished one, then think of all the countries that simply lock up journalists at will — China, North Korea, and Iran, to name just a few. It may be too late for Taricani, who’s scheduled to be sentenced on December 9. But let him be the last.

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