©[2012] Sandra Mardenfeld ALL RIGHTS RESERVED REPORTERS IN PRACTICE: THE ROLE OF PRIVILEGE IN CONTEMPORARY JOURNALISM by SANDRA MARDENFELD A Dissertation submitted to the Graduate School-New Brunswick Rutgers, The State University of New Jersey in partial fulfillment of the requirements for the degree of Doctor of Philosophy Graduate Program in Communication, Information and Library Science written under the direction of Dr. Susan Keith and approved by ________________________ ________________________ ________________________ ________________________ New Brunswick, New Jersey [October, 2012] ABSTRACT OF THE DISSERTATION Reporters in Practice: The Role of Privilege in Contemporary Journalism By SANDRA MARDENFELD Dissertation Director: Dr. Susan Keith Journalists often take the position that confidential sources should remain anonymous. One tool journalists invoke when pressure is exerted by the government to reveal a source’s identity is reporters’ privilege, basing this right on the First Amendment, which protects freedom of speech and the press. Yet the interpretation of exactly what this Amendment promises is much debated. Studies on reporter’s privilege and shield laws usually focus on three arenas: historical developments (Allen, 1992), analysis of legislation and court cases (Fargo, 2006-c; Fargo, 2002; Schmid, 2001) and whether the First Amendment promises privilege at all (Marcus, 1983). Little research, however, looks at reporter’s privilege and shield laws through the eyes of practitioners and whether they think the threat of source exposure corrupts the newsperson’s ability to inform the public, thus hurting free speech. Similarly, there is little research on how the mainstream news media frame reporter’s privilege and shield laws and what the public thinks of them. The first purpose of this dissertation is to understand journalists’ perceptions of the importance of the reporter/anonymous source relationship and whether they think the threat of revealing sources alters the newsgathering process by interviewing ii journalists who went to jail rather than expose their sources. The second goal is to understand how reporter’s privilege and shield laws are portrayed to the public by looking at the frames four major metro newspapers, in different geographical regions, used in their editorial pages when discussing reporter’s privilege and shield laws over the span of 38 years, starting in 1972, the year of the pivotal Supreme Court decision in Branzburg v. Hayes1. The findings may provide insight into how the media explain such issues to the public and how the media establishment can better construct their narratives to educate its audience on such concerns. The last purpose is to suggest how the public may understand the issues of shield laws and reporter’s privilege through the media they consume. The findings from focus groups conducted with three demographic groups—students, baby boomers, and seniors—provide insight into how the public may perceive and misinterpret such issues, and how media institutions can better educate the public on shield laws and reporter’s privilege. 1 The idea of a federal shield law has been a much-talked about media topic since the U.S. Supreme Court’s ruling in Branzburg v. Hayes (1972), a pivotal case in how the courts look at reporter’s privilege where a 5- 4 ruling deemed that journalists do not have a First Amendment right to refuse testimony before a grand jury. iii Dedication and Acknowledgements Dedicated to Ruben Quintero and my children, Ariane, Estela, Kira and Carter Acknowledgements Special thanks to my dissertation adviser, Dr. Susan Keith, and my committee members: Dr. Barbara Fowles, Dr. Montague Kern, and Dr. John Pavlik. Thanks to Erin Christie and Dr. Elizabeth Wollman for their unflagging support. iv Table of Contents I. Introduction…………………………………………………………….....1 II. The Background of Privilege a. Tracing the History of Privilege from First Amendment Theory to the Marketplace of Ideas to the Evolution of the News Media’s Watchdog Role……………………………………………………………….…..14 b. Literature Review: Academics on Privilege……………………….....43 III. Research…………………………………………………………………..52 a. Interview Study: Jailed! Journalists Incarcerated for Protecting Sources Speak Out on the Importance of Reporters’ Privilege……..................54 b. Framing Analysis: What Newspapers Tell Their Readers About Shield Law and Reporter’s Privilege: A Framing Analysis of Editorial Pages from 1972 to 2010………………………………………………..…...80 c. Focus Group Study: Editorials, Reporter’s Privilege, and Public Perception—A Qualitative Look at Audiences’ Opinions and Attitudes about Shield Laws ………………………………….……………….139 IV. Conclusions, Limitations and Future Research……………………..…...170 V. Reference………………………………………………………………...187 VI. Appendices……………………………………………………………….245 v 1 Introduction “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.” —The First Amendment of the Constitution Throughout history, journalists and the governments they cover often have engaged in contentious relationships—although certain administrations seem to have hindered the media more than others. One point of conflict comes when the government insists that journalists reveal their sources in court cases. For the news media, maintaining promises to confidential sources, a term used by reporters to describe unidentified individuals from whom they get information for stories, is paramount since they believe violating such trust not only breaks basic tenets of journalism, but could potentially prevent sources from coming forward in the future. When secrecy and obfuscation hinder fact-finding, some journalists contend the only way to uncover certain information is through such confidential sources. As Elrod (2003) frames it, “The difficulty is that ordinary citizens are limited to the information that the media makes available” (pp. 122). Without access to whistleblowers (insiders who give information about their institution, often to the news media), a reporter’s ability is hampered, sometimes to the extent that the truth cannot surface. Because of this belief in the value of confidential sources, some journalists will go to great lengths to protect them— including serving jail time in lieu of exposing their sources. 2 Various governmental administrations have impinged on this conviction of the news media. For example, Richard Nixon employed several methods of controlling information disseminated by news organizations, including hiring “plumbers,” people who tried to plug leaks within the White House and Congress (Do journalists need a better shield?, 2004), and subpoenaing dozens of journalists in the late 1960s and early 1970s (Schmid, 2001). In fact, the administration even attempted to discover the identity of “Deep Throat,” the source journalists Bob Woodward and Carl Bernstein used in their series of Washington Post articles on Watergate (“Do Journalists Need a Better Shield?,” 2004). At one point, Woodward and Bernstein gave all their notes to then-publisher Katharine Graham in a strategy they called the “grandmother defense” since she was in her 60s. As Bernstein said in a Frontline TV special, “As [Ben] Bradlee2 said, ‘Wouldn’t that be something? Every photographer in town would be down at the courthouse to look at our girl going off to the slam.’ And Mrs. Graham was ready to go to jail because she understood the principle” (“Secrets, Sources & Spin,” 2007). The tactic wasn’t needed, however, because U.S. District Judge Charles Ritchey dismissed the subpoenas (“Do Journalists Need a Better Shield?,” 2004). The administration of George W. Bush often battled with the press about the access to information—and the position of whistleblowers—as intently as in the Nixon era (Shaw, 2005). From 2001-2008, the U.S. government actively pursued journalists and their confidential sources, threatening to impose hefty punishments on individuals who released information deemed classified or imperative to national security. In 2006, The Washington Post revealed that in attempting to limit classified information leaks, the Bush administration had targeted journalists and their government-based sources, 2 Then executive editor 3 intimidating them by saying that publication of information deemed to harm national security could result in jail time, with journalists being prosecuted under the 1917 Espionage Act (Eggen, 2006). Although that never occurred, several administration officials insinuated that when The Washington Post and The New York Times published stories on secret prisons in Eastern Europe3 and undercover surveillance of Americans4, that legal ramifications could occur. Such specific threats are troubling. As Stone (2006) said, “They must…be taken seriously. Not because newspapers are really in danger of being prosecuted, but because such intimidation is the latest step in this administration’s relentless campaign to control the press and keep the American people in the dark.” This type of pressuring also takes the forms of subpoenas —something that is increasing for journalists. According to a 2001 study by The Reporters Committee for Freedom of the Press (RCFP), 823 subpoenas were served on 319 news organizations surveyed in 2001. The RCFP estimated that applying that data to the about 2,300 news media institutions nationwide would equal