Tell it to the judge

I’ve never talked with Scooter Libby. I haven’t seen Karl Rove since he visited USC a couple of years ago. I’ve known Dick Cheney a long time, but we’ve not discussed Valerie Plame, yellowcake or Saddam Hussein. Those are my disclaimers.

Have I used anonymous sources? Sure. In Washington, it’s hard to avoid the background briefing—attributed to a “senior White House official”—or the calculated leak. Occasionally, you’ll hear from a whistleblower wary, even terrified, of exposing his identity. If the information disclosed fits the story, is credible and verifiable, you will probably use it. Still, you always prefer on the record information to which you can attach a name.

The issue that is causing so much journalistic turmoil is not so much the use of anonymous sources, but the journalist’s responsibility to protect those sources. It’s also about the preservation of journalistic integrity.

Here’s what we need to tell our journalism students and remind our grads.

The First Amendment to the Constitution is not a grant of immunity. It says Congress shall make no law “abridging the freedom…of the press.” But it’s not an impenetrable shield. The New York Times’ Judith Miller was jailed for contempt of court, a law intended to keep all of us respectful. Whether Miller needed to go to jail or should have is fuel for lengthier discussion than this.

Anonymous sources should be the rarest kind, a condition rarely asked and even more rarely granted. Absent personal or national security concerns, there’s seldom compelling reason for it.

Manipulation has become the norm of politics. Whether it was Scooter, Karl, the Veep or yet another White House whisperer, the Plame game was cloaked—and not very clandestinely—in political motives. The journalist, eager for the nugget no one else has, must still question the reason for the leak. Skepticism is one of a journalist’s healthiest attributes.

Moreover, when a journalist goes to court and becomes part of the story, the story changes. Journalists are trained to be observers, occasionally participant observers—I’m thinking of the embedded reporters in Iraq. We’re headline writers, not headline makers. At least, that’s the way I learned it.

Journalists have a place in court and, from my experience, should have a bigger place. The third and often decisive branch of government is too seldom covered. Is it because too few journalists are trained in the law? Is it too complicated for the tight news hole in many papers and most tv newscasts? Are the media unwelcome?

Importantly, it is not necessarily the latter. At a gathering of federal judges and journalists at the First Amendment Center at Vanderbilt in mid-November, judges expressed a willingness to work with the media.

“I wish more media would call me more often,” said Judge Andre Davis of the District of Maryland. “We, as judges, are teachers.” Other judges indicated they are not unwilling to talk with reporters, even explain cases. But they are more inclined to do that when they have established a working relationship with the reporter.

Judge Gerald Tjoflat of the Court of Appeals for the Eleventh Circuit in Florida noted that he tailors some court opinions with the media in mind, especially in cases with high public profiles. Judge Tjoflat feels that if he writes for the media, reporters should not have to ask, “What does this mean?”

“The coverage we get is pretty darn good,” said Judge Brock Hornby of the District of Maine. “If we have a complaint, it’s the coverage we don’t get.”

That argues strongly for editors and news directors assigning experienced reporters to cover courts and giving reporters the latitude to spend what time is needed to get to know the issues, the cases and the judges.

Arriving at that kind of a symbiotic working relationship with the courts might even keep a journalist out of jail.