Reporters often think of themselves as powerless to challenge an employer's decision, but this is nonsense. Did Cooper voluntarily turn over his notes to his employer? We don't know. What we do know is that in some past cases reporters have recognized the dichotomy between reporter and employer and retained physical control of their materials. In a Supreme Court case in the late '60s and early '70s involving the Black Panthers, New York Times reporter Earl Caldwell retained his own attorney (Anthony Amsterdam) to avoid having to give up sources or testify before a grand jury.
Some commentators have argued that reporters should only promise confidentiality to altruists, people who don't have an agenda. In other words, only to good guysnot to bad guys with impure motives. This too is nonsense. Virtually every leaker has an agenda. What should a reporter do if an attorney representing an alleged felon wants to pass you evidenceanonymouslyabout prosecutorial abuse in the case? Do you blow him off, refuse his information? Isn't it the press's obligation to report abuses in the justice system, whoever commits them? Remember, in the real world, there's a decided dearth of saints. It's worth noting that most of the stories that came after the White House/Novak outing of Valerie Plame pointed directly at the motives of the leakers.
The question the public has to decide is whether or not it wants investigative journalismserious journalism that exposes corruption in high places. The question for journalists is whether they are willing to accept the possible sacrifices involved in such reporting, such as going to jail. If we aren'tindividually and as a professional communitythen it seems to me we are walking on the thinnest of ice.
Where will the protections for our work come from if we aren't willing to stand up front and take the heat? And not ask for special treatment, such as home confinement instead of jail? From my vantage point, that's the only way we're ever going to garner public support for what we do. There's a lot of talk about the need for a federal shield law, since 49 of 50 states have them. It's a nice idea. But what if the votes for a federal statute aren't there? Do we surrender and go into hiding until the votes are found?