When The Bench Uses a Club

By WILLIAM A. HENRY III

What you see often depends on where you sit. If it is in a newsroom, you probably believe what democracy needs most is to protect the free flow of information. If it is on a judicial bench or in a prosecutor's office, you probably focus on respect for the rule of law. In truth, free press and fair trial are both important values. But they can collide, and increasingly journalists lose. News organizations find themselves ever more under court order to reveal confidential sources and sometimes to hand over notes en bloc -- often to a lawyer on a fishing expedition for anything that might help.

In an extreme case that captured headlines last week, a journalist's sources were stripped bare without the reporter even being notified of the search. In Hamilton County, Ohio, a prosecutor ordered a secret electronic snoop through the records of 35 million telephone calls made between March 1 and June 15 from 655,000 southwestern Ohio lines to find any potential corporate leakers who had called the home or office of Wall Street Journal Pittsburgh bureau reporter Alecia Swasy while she was researching stories that embarrassed Procter & Gamble, a major Cincinnati area employer.

Swasy is now enduring one of the two main results of the subpoena epidemic, a chill on her work because confidential sources may not feel safely anonymous. Other reporters have faced worse. In recent months, Libby Averyt of Texas' Corpus Christi Caller-Times and Brian Karem of KMOL-TV in San Antonio were jailed briefly for withholding unpublished or confidential information. Jail, fines or other punishments were threatened against reporters at the Washington Post, Los Angeles Times, Miami Herald, Houston Post and Chronicle, Oakland Tribune and even Florida's Stuart News and Oklahoma's Pryor Daily Times.

In all, U.S. news media faced nearly 4,500 subpoenas in 1989, the only year for which statistics exist. Editors and attorneys agree that the volume has surged since. The demands have expanded beyond criminal cases to civil suits, which now account for a third of all subpoenas. Some involve government policy or alleged libel. Many are routine requests for published stories. But in a rising number of cases, the demands are invasive, the battle is over money, and the conflict strictly involves private parties. That was actually the case in Cincinnati, where P&G failed to prevent the leaking of internal policy debates, then persuaded authorities to view the matter as a criminal violation of laws protecting trade secrets.

Journalists feel a moral obligation to sources; in June the Supreme Court held that there may also be a legal one. It ruled that a political consultant who planted damaging facts about an opponent could sue two Minnesota dailies for printing his name after reporters vowed not to. Yet the trend is toward more subpoenas to reveal sources, even in the 28 states that offer some sort of shield law, in part because judges often nullify the protection. They are especially prone to do so in cases involving serious crime. Reporters reply that the information being sought can be found in other ways or is not essential. In covering Charles Stuart -- the Boston man who claimed his wife was shot by a black robber, then confessed to the crime and committed suicide -- reporters Patricia Mangan of the Boston Herald and David Ropeik of the city's WCVB-TV suggested that Stuart's brother was complicit. The district attorney sued unsuccessfully to make them reveal sources, arguing that other means had been exhausted. Says Ropeik: "I happen to know that the question, - 'Were you Mr. Ropeik's or Ms. Mangan's source?' was not put to a number of people who appeared before the grand jury."

Occasional cases involve outright judicial pique. California Superior Court Judge Bernard Kamins defied the logic of the state shield law, which bars judges from finding reporters in contempt for protecting a source, when Richard Serrano of the Los Angeles Times would not say how he got a secret report about the notorious videotaped police beating of Rodney King. In May, Kamins imposed a $1,500-a-day fine, later much reduced, claiming the punishment was not for contempt but for refusal to expose who violated Kamins' gag order.

Win or lose, reporters often become gun-shy. The San Francisco Chronicle's Erin Hallissy has been in and out of court for five years to safeguard notes she made of her jailhouse meeting with an accused multiple murderer when she worked for the nearby Contra Costa Times. She says, "In interviews like that, I think, 'Do I really want to get myself involved?' " Serrano says whether or not he was chilled, his sources were. "My phone calls weren't returned."

Sometimes editors see no reason to resist subpoenas. More often they can't stand the political heat, legal expense or logistical difficulty of having staff tied up in court. Harry Harris, a 26-year veteran of the Oakland Tribune, fought for a while but was eventually advised by Tribune lawyers to show his notebook in a murder case to a judge in chambers. He says, "I really have been affected by it. When you go into an interview, you say, 'Look, what you say is between you and me, and what I don't use, the public doesn't know about.' " That is the deal every reporter makes. The real danger in the rush to subpoena reporters is not that news organizations will face expense or inconvenience but that stories that used to be hard to get will become -- as Procter & Gamble so plainly hoped -- well nigh impossible.

With reporting by Dan Cray/Los Angeles with other bureaus