Anonymity in Journalism Examined at Inaugural Thomas Jefferson Symposium

Not all media attorneys agree that sunshine is the best disinfectant." Anonymity can be an important part of the democratic process, said a prominent lawyer in the field Saturday at the University of Virginia School of Law.

Baker Hostetler partner Bruce D. Brown carefully vetted U.S. Supreme Court Justice Louis Brandeis' famous quote regarding transparency and the media during the inaugural Thomas Jefferson Symposium, Disclosure, Anonymity, and the First Amendment." The event was sponsored by the Thomas Jefferson Center for the Protection of Free Expression and the Law School's student-edited Journal of Law and Politics.

Brown, a former journalist who co-teaches the Law School's First Amendment Clinic, presented his keynote address after an introduction by fellow Baker Hostetler partner Bruce W. Sanford.

I think we ought to get rid of the word 'leaks,'" Brown said, quoting a high-profile speech by Sanford following their amicus brief on behalf of New York Times reporter Judith Miller, who was jailed in 2005 for refusing to disclose a confidential source in the Valerie Plame affair. Toilets leak. Garden hoses leak. But to describe the texture of the complicated relationship between reporters and sources as involving leaks is simply not very helpful in appreciating how valuable those relationships are to all Americans."

Leaks have grown widespread, Brown said, and courts generally perceive them as an exchange of information from the politically powerful to the media elite."

Courts gradually recognized a right for the press to protect confidential sources for about 100 years, Brown said. In 1896, Maryland was the first state to pass a shield law, after a newspaper reporter refused to tell a grand jury how he knew members of city government were being paid off by the proprietors of illegal gambling establishments. Other states followed suit with similar laws, and by the 1980s, a body of precedent in the federal courts recognized a qualified privilege for journalists, too.

But today the pendulum has swung the other way," he said, The reporter's privilege is now a disfavored body of law."

With the continued reliance on anonymous sources over the past two decades, judges have amplified their scrutiny of the privilege, Brown said. He added that after the Sept. 11 attacks, the government began to make a more compelling argument for revealing anonymous sources in cases involving national security.

He also noted the impact of discredited journalists Jayson Blair, formerly of The New York Times, and Janet Cooke, formerly of The Washington Post, who were accused of fabricating stories that relied heavily on supposed anonymous sources.
All of these cases, he said, have served to give the word leak" a negative connotation.

The vocabulary needs to change in order to bring the law back to a direction where judges are again comfortable protecting the relationship between reporters and sources," Brown said.

Following Miller's case, Brown and colleagues working with the Society of Professional Journalists attempted to get a federal shield law passed, but were unsuccessful, due in large part to the political climate, he said.

But Brown said the news hasn't been all bad in the past 20 years for journalists and media outlets in regards to anonymity.
He pointed to Section 230 of the Communications Decency Act of 1996 as a victory related to identity-withheld speech on the Internet. The act gives online publishers immunity from libel suits, for example, that arise from third-party comment threads.

People who make libelous comments online, however, do not enjoy the same immunity. Nevertheless, publishers have increasingly fought to protect such commenters' anonymity, and the courts have shown support.

Brown related his law firm's experience in Brodie v. Independent Newspapers, which set a state precedent of looking at the strength of a libel claim before compelling a publisher to reveal the identity of an anonymous poster.

He also noted his firm's successful defense of a newsletter publisher who wished to keep a subscriber list private from a Securities and Exchange Commission investigation surrounding a stock tip.

Both cases were heard in Maryland, where the original shield law was born.

Brown's address closed the symposium, which also included two panels of legal scholars, one on disclosure laws and the Constitution and the other on disclosure and the political process. The symposium was made possible by support from Baker Hostetler and the Scripps Howard Foundation.

Sanford, who is also chairman of the board of the Thomas Jefferson Center, said the event is the first of many to come in association with Virginia Law.

We want a firmer handshake with the Law School, and the symposium is just one example of that," he said.