Former Reporter Evaluates Possible Shield Law

A federal law that would offer protection to journalists who refuse to reveal their sources is before the Senate Judiciary Committee. Toni Locy, a former USA Today reporter once held in contempt for not revealing her sources, assesses the proposed shield law.

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From Watergate to Abu Ghraib, journalists relied on anonymous sources to expose corruption and government misconduct. If they can't protect their sources, journalists argue, many whistleblowers will be afraid to share what they know, and wrongdoing may never come to light.

Almost 40 states have erected so-called shield laws to protect reporters from being forced to reveal confidential sources, but there are no protections in federal court. You may recall that a parade of reporters and columnists appeared before the federal grand jury that investigated the leak of Valerie Plame's identity as a CIA agent. Now a federal shield law is making its way through Congress.

So reporters, prosecutors, call and tell us how this might affect you. If you read or listen to the news, how important are anonymous sources? Do you trust these stories? 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our Web site. That's at npr.org, click on TALK OF THE NATION.

Joining us is former USA Today reporter Toni Locy. She faced stiff fines for refusing to identify sources she used in her reporting about the investigation into the 2001 anthrax attacks. Toni Locy, now a professor of legal reporting at Washington and Lee University and joins us from the studios of member station WDUQ in Pittsburgh. And thanks very much for being with us.

Professor TONI LOCY (Washington Lee University): Thank you, Neal.

CONAN: And tell us, one of the most controversial aspects of this federal shield law are exemptions for national security. What kind of exemptions would be required?

Prof. LOCY: Well, first of all, the proposed bill would allow reporters to protect sources only if they were reporting about a leak that - about an incident that happened in the past where they, for example, uncovered a government mistake or misconduct and there's no tangible, no imminent threat that - of any kind of a harm to national security. Then...

CONAN: So this would cover that so-called ticking time bomb case if the reporter has information - the information is vital to uncover some case?

Prof. LOCY: Right. I mean, if a reporter had information that something was going to blow up, then obviously that reporter would have to turn over that information. It would be very, very difficult for the reporter not to do so. And that's the case now, Neal. There's no such protection existing at this moment.

CONAN: Well, there are broader protections. In this case, some reporters' protective groups have said, wait a minute, we're not - we think these exemptions go a little too far. For example, in your reporting on the anthrax case, would you have been protected?

Prof. LOCY: Well, no, probably not at the trial court level because of the way that Judge Walton looked at the case. In his opinion, anything and everything that was written about Dr. Hatfill violated Dr. Hatfill's Privacy Act rights. It's a different ballgame. We were talking about Privacy Act in the Hatfill case, and national security is a completely different ballgame.

CONAN: So I see. This case is wending its way through Congress. What is different is that there is president of the United States, Barack Obama, who has said that he will, if it's passed, sign it.

Prof. LOCY: Correct. Yes.

CONAN: And is it going through the - where does it stand now?

Prof. LOCY: Well, it's still in the Judiciary Committee as far as I understand. Senator Kyl has offered a number of amendments, and that's where it is right now. It could come out of there if the sponsors of the bill go to Senator Reed and ask him to take it directly to the floor of the Senate and seek an up or down vote on it. But right now it's still in the Judiciary Committee.

CONAN: And couldn't the same thing happen then? Couldn't Senator Kyl or anybody else continue to offer amendments?

Prof. LOCY: I'm sure they could, but the Senate's rules, as you know, are very different from the House of Representatives. So it depends on how the rules are followed or manipulated as to whether or not it would get its up or down vote. But from what I understand, the votes are there.

CONAN: We're talking with Toni Locy, a former reporter for USA Today, about the federal shield law that's making its way through Congress, and some give it some good chance to actually be enacted this time around. It's been brooded about for years, but never gotten this far. If you'd like to join the conversation: 800-989-8255. Email us: talk@npr.org.

And let's hear from Martin. Martin's with us from Chandler, Arizona.

MARTIN (Caller): Hi. Good afternoon. Thanks for taking my call. So my question is this. Since the basis of information - the source of information is very important as to know whether that information is accurate, if the anonymity of a source is protected, how do we as a public know that the information is coming from a reliable source?

CONAN: And this is, I think, the basis of a lot of people's concerns about anonymous sources, Toni.

Ms. LOCY: Well, yes, it is. And the issue here is that the reporter knows who the source is. And the reporter - in my case - I mean, I can speak for myself�

CONAN: Mm-hmm.

Ms. LOCY: �I knew who my sources were. I had longstanding relationships with these folks. I had dealt with them on other stories in the past. So there was a track record, if you will.

And yes, I can understand the suspicion of the public. I do. Really, I do. But it's up to the reporter to vet that source, if you will, to test that source's motivation, to test that source's knowledge. And if the reporter does that, then the public is served.

CONAN: There's always the question of Cui bono, who benefits if somebody comes to you with the story and says you have to protect me - otherwise you're not going to get it, and it helps somebody and hurt somebody else. Inevitably, that's the case. There's a question of axes being ground.

Ms. LOCY: Well, yes, and that's one of the key things that a reporter has to ascertain, is whether the source has an agenda. You know, a source is not providing information to a reporter because, you know, the source thinks he or she is cute. There's a reason. Every source has a motivation. And it is imperative that the reporter figure out what that motivation is.

CONAN: Thanks very much for the call, Martin. Let's see if we can go next to -this is Brad. Brad with us from Jackson, Wyoming.

BRAD (Caller): Hi. Thanks for taking my call.

CONAN: sure.

BRAD: Yeah, I - and just, you know, reading national media sources and whatnot, I see more and more over the last few years, more and more sources cited as anonymous - you see that term all the time, condition of anonymity. And it seems like the stories get more and more watered down. And they lose - they tend to lose a bit of credibility. And I would just be curious with your guest's opinion as to, you know, I guess what are the boundaries of having an anonymous source and what, you know, what conditions should be set to cite a source anonymously�

CONAN: Well, Toni Locy now teaches this profession. So Toni, what do you tell your students?

Ms. LOCY: Well, one of the dirty little secrets in Washington in particular is, is that government officials, in particular, hold this information hostage, if you will, in exchange only for promises of anonymity. You'll see stories - and I think what the caller is referring to is an increase in stories where, you know, a senior government official said such and such. But those are briefings. They're background briefings where reporters - you'll have a whole room full of reporters who will be told that you can only use this information if you promise that you won't name this particular government official. So a lot of this is orchestrated by the government. That's the dirty little secret.

CONAN: It's institutional, in fact.

Ms. LOCY: Correct.

CONAN: It's the way the business works. All right. Let's see if we can go next to - this is Laurie. Laurie with us from Port Jeff in New York.

LAURIE (Caller): Hi. Thanks so much for taking my call.

CONAN: Sure.

LAURIE: I'm a trade reporter, so it's a little bit different in my industry, where, you know, we'll be talking about a specific industry trend and maybe a retailer or a specific vendor doesn't want to speak on the record. So we'll attribute to being an industry expert or, you know, a source within the industry. But in kind of - and not to downplay my own profession, but in more serious journalism, where you're coming up upon people who, whether you're talking about a crime story or, as the previous caller mentioned, political stories where people are speaking from within the organization on the condition of anonymity, or where you see something that says, you know, by somebody -this quote was given by somebody who wanted to remain anonymous, given the gravity of the situation or the seriousness of the case, how can you then be -how can that source be relied upon from within the organization? Or is that not a concern of us as journalists?

Ms. LOCY: I'm not sure what you mean, but I think�

LAURIE: There's - I think that there's a certain - I think that there's a certain concern when you're dealing with your sources who are giving you this inside information that you're not supposed to have. What's our responsibility as journalists to say, yes, we have a duty to (unintelligible) to serve the public and present information to the public. But it's kind of also essential -if this information is supposed to be classified or it's so important that the information is not revealed by this particular source, how can we count on that information as reliable and count on that source as reliable?

Ms. LOCY: Well, I think what you have to do as a reporter - at least what I did when I was a reporter - was that I - you have to weigh the importance of the information. Is this something that the public should know? And if you answer that yes, then you go forward with publishing the information. But if you have any concerns or reservations about, you know, your source's motivation, then trust that instinct. That would be my advice.

CONAN: And in general, use it as a last resort, because it's easily able to be abused.

Toni Locy, thanks very much for your time today. We appreciate it.

Ms. LOCY: Thank you, Neal.

CONAN: The federal shield law is in the Senate Judiciary Committee and more action is expected next month.

You're listening to TALK OF THE NATION from NPR News.

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