by MARK MAATHUIS

The conviction of former White House aide I. Lewis “Scooter” Libby on March 6 ended a drama of Shakespearian proportion that included the 85-day imprisonment of reporter Judith Miller, the subpoenaing of the media elite, and a potential vice presidential court appearance. Even without Vice President Dick Cheney’s testimony, the case was unprecedented. Never before have so many journalists (12) been subpoenaed for one trial.

“This case was horrifying,” said Lucy Dalglish, spokesperson for the Reporters Committee for Freedom of the Press, an organization defending First Amendment rights. “The last place a journalist wants to be is in court testifying for one side or the other.” She said the freedom of the press is increasingly endangered. “Federal courts are behaving more hostile, there is no question about that.”

Numbers on the Reporters Committee for Freedom of the Press’ Web site going back to 1984 show a rise in the number of days journalists have spent in jail in the last 10 years.

Director of the First Amendment Center, Gene Policinski, said that while the Libby trial is a caution to journalists to be more prudent in promising their sources confidentiality, a greater impact is that whistle blowers will be less likely to come out with their stories, he said.

“The average journalist does not use unnamed sources,” Dalglish said. “Protection is meant for those sensitive sources that, otherwise, would not come out with what they know.”

USA Today editor Adell Crowe said that news organizations need to verify that sources are telling the truth before going public with the claims. “Our reporters get trained in talking to unnamed sources and we have guidelines for publishing stories using their information.”

Crowe said that before reporters use an unnamed source, they must state that they are confident about the veracity of the information, and tell the managing editor who the source is. “The reporter then sends a note to the standards and development editor to explain that source was used in the right way.”

The promise of confidentiality a reporter gives to his source entails that while the source promises to tell what he knows, the reporter promises to never mention his name, even when threatened with jail time.

Lance Williams, sports reporter for the San Francisco Chronicle, was willing to risk just that. He and his colleague Mark Fainaru-Wada co-authored ”Game of Shadows,” which chronicled baseball slugger Barry Bonds’ alleged steroid use. On May 5, 2006, they were subpoenaed to testify before a federal grand jury about how they obtained Bonds’ leaked grand jury testimony. On September 21, 2006, they were sentenced to 18 months in prison after they were found to be in contempt of court because of their refusal to reveal their confidential source.

“If I promise to go all the way, I’ll keep my word,” Williams said. They avoided jail time when attorney Troy Ellerman pleaded guilty on February 14, 2007 to leaking the information they used for their stories.

Hearing the verdict was “not a pleasant thing,” said Williams, but his belief in his First Amendment right meant he would not give in.

“I have said for 25 years that I would go to jail if I had to. I had no choice, no alternative. But I am happy they backed down.” After Ellerman’s testimony, the court withdrew its subpoena. Williams and Fainaru-Wada never verified the source.

The relationship between a journalist and his confidential source has been compared with the lawyer-client, doctor-patient and priest-penitent relationship. But unlike those professions, journalists have no legal ground for exemption based on federal law. This is a result of the 1972 Branzburg vs. Hayes Supreme Court ruling. However, the minority judges in the case indicated that news gathering may have certain First Amendment protections.

Lower courts have applied a “qualified privilege” for journalists in situations in which the government’s need for the information is less compelling than the Branzburg vs. Hayes case, which dealt with journalists observing and reporting crimes.

The District of Columbia and 31 states have shield laws for journalists, and 18 other states have recognized a reporter’s privilege.

“The lawyer’s, doctor’s and priest’s right to refuse benefits the individual,” Policinski of the First Amendment Center said, “Because everybody in society can benefit from a whistle blower, there is even more reason to protect journalists.” The First Amendment Center is sponsored by the Freedom Forum and associated with the Newseum.

In the federal courts, however, there are no uniform standards to govern when testimony can be sought from reporters. To change that, Rep. Mike Pence (R-Ind.) introduced the Free Flow of Information Act last year. This law aims to protect journalists from Federal Court room appearances, turning over information or identifying confidential sources.

The day after the verdict in the Libby trial, Pence urged Congress to pass the law. “If there is anything we learned from this case, it is that the First Amendment and freedom of the press are still behind bars,” he said in a statement. “The need for a federal media shield bill has never been more apparent.”

Cliff Kincaid, editor of the conservative watchdog group Accuracy in Media, opposes the proposal, he said. “This law claims to protect journalists. Who is a journalist? People with a New York Times or Washington Post press card? Bloggers?”

Kincaid called the law “a mistake” because the definition of a journalist will be made in courts. “That runs close to undermining the First Amendment’s freedom of the press,” he said.

Williams disagrees with this interpretation, “The Californian state shield law defines a journalist as a person working in news gathering.” Williams said he hopes the law will be passed to protect the profession.

The call for this law is caused by political motivations, Kincaid said. People will abuse the extra protection to spread false stories, he said, based on “questionable sources, non-existent information and so-called legitimate documents.” Kincaid has written several articles criticizing a federal shield law. “Calling oneself a journalist should not be a way to avoid responsibility under the law.”

He cited CBS news anchor Dan Rather — who relied on false documents claiming President Bush got a favorable treatment in the National Guard, Washington Post reporter Janet Cook, who won a Pulitzer Prize for a fabricated story, and USA Today’s Jack Kelley.

Kelley’s abuse of unnamed sources and fictional quotes led to a policy change by USA Today. The use of confidential sources has dropped 75 percent since Kelley’s abuse came to light, Crowe said, because “we put teeth in the guidelines.”

“We were overusing them because we were not following our own guidelines,” she said.

Williams is unsure about the effects of his own trial on the San Francisco Chronicle, but he said reporters in the state “recognized how serious the attorney general is when dealing with confidential sources.” Legal costs are also a concern, Williams said. “The paper spent $1 million defending us. That money that could have been used for reporting.”

The Chronicle’s guidelines when dealing with unnamed sources are similar to USA Today’s rules. “We have to protect ourselves,” Williams said. That means being careful when giving a promise of secrecy to a source, he said, “And when in doubt, do not do it. You cannot go back on a promise.”

When asked if he would risk jail again for an unnamed source, he said, “If there is no other way and the story is good enough, you bet.”

Dalglish said 30 journalists were subpoenaed last year, based on the information known to the Reporters Committee for Freedom of the Press. She does not know if that number is accurate.

“Nobody keeps track,” she said. “And anyway, journalists and news organizations do not boast about subpoenas and there is no central point collecting this kind of data.”

Dalglish said she expects more journalists to go to jail in the future “because of the more narrow interpretation of the First Amendment by judges who have been appointed by Republicans.”

Williams is willing to face that danger: “Running a risk for what you believe in–that’s cool.”