Technology changes, but the basic tenets of journalism and the codes that govern reporting in a free society remain remarkably the same.
Certainly that is the case after nearly half a century of struggles to protect the flow of information by shielding reporters from over-aggressive governmental officials who try to use them as an arm of the law.
Today, reporters face an attack from a surprising source: the Obama administration, which promised transparency of unprecedented levels. As the AP and others are finding, the administration's idea of transparency is to peer into their notebooks — or phone records — in an effort to punish sources who shared important information with the public.
Like so many other outrages, the struggle today really dates to Richard Nixon and his paranoia about leaks and the press in general.
We were working with typewriters in those days and landline phones easy to tap, but until Nixon’s attorney general John Mitchell began looking for reporter notes as a way to pursue radicals and miscreants, only a few elite investigative reporters really had much to fear from prosecutors.
Relations with sources were informal in 1960 when I joined the morning daily in Salem, The Oregon Statesman. As I moved into covering politics I had to frequently decide which political talk was gossip, which was worth promising confidentiality in hopes of opening up a good story, and when to simply tell a source that everything was on the record. But I don’t recall a newsroom protocol or direction from an editor, as would likely the be the case today; it just sort of happened as a young reporter learned who could be trusted and who was manipulative.
The late Annette Buchanan is now a footnote in press history, but in 1966 the young editor of the University of Oregon’s Daily Emerald defied a subpoena by the Lane County District Attorney to produce the names of students who had talked to her about using marijuana. The case was a wake-up call of sorts, producing national attention, but it quickly faded as she paid a $300 fine for contempt of court but avoided jail. The Oregon Supreme Court later denied her appeal. Ironically, the decision was written by Justice Alfred (Ted) Goodwin, a former Eugene Register-Guard city editor and staunch First Amendment defender. "Nothing in the state or federal constitution compels the courts, in the absences of statue, to recognize such privilege," Goodwin ruled, and we were put on notice.
A few years later, the press was hip-deep in Watergate and Nixon had reporters on his infamous “enemies list.” We became as paranoid about Nixon as he was about us, and in 1970 a group of D.C.-based reporters formed the Reporters Committee for Freedom of the Press. I served several years on the national steering committee but RCFP was, and continues to be, focused on the nation’s capital. The committee is deeply involved in the objections to the Obama administration's actions, which it calls "extremely troubling," and organized a discussion in Seattle.
Even then we pondered how to deal with the “who is a reporter” issue, which in this modern age of bloggers, tweets and texts and all the paraphernalia of personal media will continue to dog legislators hoping to finally pass a federal shield law. In the 1970s it was the alternative press, often with very flexible journalistic standards and a favorite of young war resisters and drug users.
Alternative papers were a natural target, but ironically the first case that really drew our attention involved The Grey Lady herself, The New York Times. Reporter Earl Caldwell wrote a story in 1970 based on confidential interviews with several Black Panthers. Caldwell refused to talk and his case was combined with two others and found its way to the U.S. Supreme Court. In the case of Caldwell and the other defendants, there could be no question about their status as reporters; the challenge was to wrap the First Amendment around their shoulders.
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