The past few weeks have not been good ones for journalists. On two coasts and in two trials the issue of anonymous sourcing and off-the-record conversations has come to the fore – and in both cases questions have been raised about reporters' methods.
The trial of former White House aide I. Lewis "Scooter" Libby ended last week in guilty verdicts on four of five counts of lying about his role in leaking the identity of former undercover CIA operative Valerie Plame. But the story behind the story was the line of journalists – some of them household names – who were called before the jury to testify about confidential conversations they had with sources.
The judge said that "waivers" their sources had signed (under pressure from the prosecution) essentially voided the confidentiality agreements they had reached. In most cases, journalists then went back to get explicit OKs from their sources before testifying.
Out in California, the case about distribution of steroids to star athletes by the Bay Area Laboratory Cooperative (BALCO) took an odd turn recently. Two journalists who'd reported on the BALCO scandal in 2004 faced jail time for refusing to say how they acquired the grand jury testimony of pro-baseball players admitting to steroid use. It turns out that they got their information from ... the defense team. A few weeks ago, defense lawyer Troy Ellerman confessed that he had leaked the information in hopes of getting a mistrial declared for his clients.
The reporters were eventually spared the threat of prison when the defense lawyer acknowledged that he was the source of the leak.
These are two different cases with two different outcomes. In the Libby case, the journalists all eventually talked. In the BALCO case, reporters were prepared to go to jail to protect a source who, in their minds, had given them information of overriding public interest about steroid use in baseball.
But to many in the public, the cases are linked by one question whose answer may be more black and white than it once seemed: Should journalists be allowed to be "above the law" and not obey when ordered to testify in court?
That sentiment points out the bigger problem that probably everyone can agree on. Journalists increasingly grant confidentiality and anonymity the way many Americans run up credit card charges – too easily. As a result, the notion of anonymous sourcing has spread from reluctant whistle-blowers and highly sensitive sources to virtually anyone. Even Capitol Hill press secretaries – paid for by taxpayer money – are now routinely anonymous, and all they are trying to do is float stories to make their bosses look good.
Most journalists will tell you that sources now often ask for anonymity before "revealing" information that is readily obtainable elsewhere. And those actions have led to a more cavalier dispensing of such agreements.
Still, source anonymity is not going to just go away. It is an established part of journalism, and don't forget that it has yielded more than a few reporting triumphs – Watergate, of course, being the most memorable.
So what, if anything, can be done?
There's no easy answer. Giving a source the blanket of confidentiality will always remain a judgment call. It may be time, however, for journalists to start making that judgment more carefully. While there is sometimes a lot to be gained in granting a source confidentiality, there may also be a lot risked.
To prevent sources from gaming the system, journalists may need to put a few provisos on that guarantee. It may be time to say "I'll grant you anonymity and hold to the deal, provided you are straight with me and don't legally hang me out to dry."
That kind of statement would probably raise a lot of questions and set off a conversation between the reporter and his sources hashing out exactly what each side is thinking. And that kind of discussion is not a bad thing.
Will that kind of talk scare some sources off? Probably, but many are likely to be the sources journalists want to avoid anyway.
After all, everyone loves a scoop, but the stakes are higher than just the risk of possibly going to prison to protect sources. If journalists don't treat confidentiality seriously, then they may wind up facing just two options: (1) Come forward and reveal an anonymous source and risk being labeled a chiseller or (2) honor the confidentiality agreement and accept that they've been used.
In a profession that thrives on reputation, those are pretty poor choices.
• Dante Chinni, a senior associate at the Project of Excellence in Journalism, writes a twice-monthly column on media issues. E-mail him at Dante Chinni.