Most of us will never know the anxiety that surely arises when an FBI agent
knocks on your door with a subpoena – that is, demanding that you appear before a grand jury investigating what you have done, fully lawfully, at work.
Many of us might think that the FBI surely wouldn’t do that if there weren’t some valid reason to think we did something wrong.
But when the FBI came knocking last week for five New York Times reporters, it wasn’t because those journalists had done anything unlawful. Yet their freedom is at risk - they really could go to jail - because the federal government is demanding to know how they got information that was embarrassing to the President of the United States.
The Times had reported that the new Air Force One jet that Donald Trump
accepted as a gift from Qatar wasn’t secure – that Trump had flown away from the NATO summit in Turkey in the old Air Force One because the Secret Service had security concerns about the new plane. Sources - unnamed by the Times - had told the reporters that the Secret Service thought Trump wouldn’t be as safe flying in the lavish gift jet that he so proudly showed off.
Trump was said to be furious that the jet problem was reported. To be clear: It
wasn’t illegal to publish the information, but it might have been unlawful for a
government official to hand over the details about the jet to the reporters. Right
now, though, it’s the reporters who have been summoned to a grand jury – and if they won’t tell who their sources were, they could be locked up until they do.
Now, you may think this is perfectly reasonable. After all, the government has a
legitimate interest in maintaining some secrets. Maybe there’s good reason not to let the public know that the fancy new jet doesn’t protect the president as well as the old jet. Maybe it’s not just because of a presidential tantrum that the reporters are at risk.
I get the concern. As somebody who led newsrooms for 30 years, I’ve heard a lot of people say, “Why should journalists get special rights?” That is, why do we think we should get to protect our sources from disclosure? Who, after all, made us the gatekeepers of information? Voters didn’t.
But there’s a good reason why the government doesn’t usually try to force reporters to talk about who gave them information. It’s this: When reporters are threatened with legal penalties for refusing to reveal their sources, it creates a "chilling effect" on press freedom – which is guaranteed by our Constitution. After all, if a whistleblower knows reporters won’t keep their identity secret - or can’t protect them from disclosure - it will discourage other people from coming forward the next time that somebody witnesses wrongdoing, or a problem that the government is concealing. And that means citizens won’t be as well informed.
So many crucial stories that we all have needed to know were based on
confidential sources: the Watergate scandal, for example; the Pentagon Papers,
revealing the true scope and failure of the Vietnam War; the warrantless digital
tracking of everyday citizens by the National Security Agency.
Journalists understand that we do not have a constitutional right to remain silent if we are asked who gave us information. But prosecutors historically have turned to reporters only as a last resort. That’s because presidents and attorneys general have recognized that the government’s interest in security isn’t its only task; it also has an interest in preserving the ability of the free press to function as a watchdog.
Using the machinery of a grand jury to squelch investigative reporting prioritizes the government’s ability to conceal its mistakes, and it diminishes the value of the public’s right to know. That is, it favors government power over citizen power.
So no, journalists aren’t asking for special privileges when they fight a grand jury subpoena. They’re just trying to assure that all of us have the privilege of a free press, one that isn’t under the thumb of the government.
So the fight to protect confidential sources is really a fight for the freedom we all depend upon, so that we can continue to know what our government is doing. So we all have a stake in this dispute between the federal government and five
reporters who are being hauled before a grand jury. And I hope we all line up on the side of freedom.
The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.
