An industry's fight for First Amendment rights

How a small-town reporter ignited the media’s battle with courts



On July 9, 2004, the fines finally stopped accruing for 73-year-old part-time reporter Wally Wakefield, but the lingering hangover is still being felt by journalists across the nation.

According to the president of The Newspaper Guild, journalists are receiving more court subpoenas than ever before. Subpoenas that media lawyers would normally make vanish as fast as they would land on a reporter’s desk are hanging around, forcing reporters, media outlets and their lawyers to make tough decisions.

Wakefield, a sports reporter for a small weekly newspaper in suburban St. Paul, Minn., refused to reveal confidential sources he used in an article about the firing of a high school football coach, and was held in contempt of court, racking up more than $16,000 in penalties.

District Court Judge John. T. Finley ordered the $200-a-day fines, which wouldn’t be suspended until Wakefield revealed his sources or the trial was completed.

Through a series of appeals, eventually leading to a hearing in the Minnesota Supreme Court, Wakefield was able to suspend the fines until April 2004, but eventually lost the case in a 5-2 vote.

For seven years, Wakefield held his promise to confidential sources he used in the news story about the coach published in the Maplewood Review in 1997.

When Tartan High School declined to renew football coach Richard Weinberger’s contract, the district declined to say why. Wakefield, determined to get the story, interviewed several assistant coaches, ex-players and others associated with the program. Under the condition of anonymity, the sources alleged the coach was dismissed because of inappropriate behavior, a bad-temper and the use of intimidation against players. Wakefield used named sources in the article, but the damaging material came from the anonymous sources.

Weinberger said the sources were lying and sued the school district. Weinberg and his attorney, Stephen Cooper, said they were certain some of Wakefield’s sources were employees of the school district. “It became pretty clear who was saying these things,” Cooper said. “The allegations made against Weinberger were pretty amazing, really, because the behavior that person accused Weinberger of, was the one doing it.”

Cooper said the source was an assistant coach under Weinberger, who had long claimed that he would become head coach after he forced Weinberger out. To prove to the court that the person responsible for spreading the false information was a district employee, Cooper pressed the court to force Wakefield to reveal his sources — and succeeded.

After much thought, Wakefield said, he declined. “As this thing progressed, it got clearer and clearer to me that I was right,” Wakefield said from his St. Paul home. “It’s a matter of trust between two people. That’s very important to me, and it should be to all journalists.”

The Wally Wakefield case represents part of an alarming trend of journalists being held in contempt of court for refusing to reveal confidential sources – in turn facing jail time, large fines, or both.

Wakefield, a semi-retired former elementary school teacher, gained support from other journalists, newspapers and First Amendment groups, locally and nationally.

The national Society of Professional Journalists, the Guild and local papers, the Minneapolis Star Tribune and the St. Paul Pioneer Press, supported a fund-raising effort for Wakefield, which raised nearly $25,000 to help him pay for the court-imposed fines.

“I had people contributing to the fund throughout the country,” Wakefield said. “At this point in life, I’ve got more time than money, and these donors really came through for me big time.”

Randy Furst, a Star Tribune reporter who led the fund-raising charge for Wakefield, said the case’s importance stretched far beyond the realm of Minnesota. “The feeling was, if the court could get away with this on a local level, they would set a national precedent, and could get away with it in any case,” Furst said. “An injury to the rights of one journalist is an injury to all.”

Furst said he believes journalists should never be forced to reveal sources. “We sent a signal to the courts that we’re going to stand up and fight this,” Furst said. “We’re not going to let a brother or sister journalist face this alone.”

The issue is seen by others, like Cooper, to be a bit less black and white. He said that journalists’ right to withhold information vital to court cases can sometimes impede the legal process, and should be limited.

“The First Amendment wasn’t created to protect liars and defamers,” Cooper said. “There have to be limits.” Cooper said that if the U.S. Supreme Court were to ever take an absolutist position on First Amendment rights, access to the truth and the enforcement of the law would suffer.

“The minute that people know they can say anything and get away with it, they are open to tell lies and get things in print without facing any consequences,” Cooper said. “If people begin to use free speech in a manner that has nothing to do with promoting public awareness or providing a public good, then it shouldn’t be protected.”

While Cooper maintained his position on the interpretation of the First Amendment, he said he generally supports reporters’ rights and the free exchange of information. He said cases like Wakefield’s need to be approached by the courts on a case-by-case basis, carefully weighing rights of the accused and considering the implications to the legal process.

Several high-profile cases have popped up on national radar since the Wakefield ruling, including a case in which a judge subpoenaed at least five reporters in a case of the media identifying a Central Intelligence Agency official, Valerie Plame.

Judith Miller of The New York Times and Matthew Cooper of Time Magazine refused the subpoena issued by Federal District Judge Thomas F. Hogan, and have been held in civil contempt of court. They are being fined up to $1,000-a-day and threatened jail time until they reveal their sources. Hogan said in a statement that the issue represented “a classic confrontation of First Amendment rights and the demands of the criminal justice system.”

Hogan references the U.S. Supreme Court case, Branzburg v. Hayes (1972), which effectively stated that society’s need to fight crime was more important than the burden of news gathering, and that reporters aren’t guaranteed privilege under the First Amendment.

“This Court holds that Ms. Miller has no privilege, based in the First Amendment or common law, excusing her in testifying before the grand jury in this matter,” Hogan wrote in his July 20 opinion. 6

Also, on Nov. 18, U.S. District Chief Judge Ernest C. Torres found Providence, R.I., investigative reporter Jim Taricani in criminal contempt of court, and could sentence him to up to six months in jail for refusing to reveal a confidential source. Taricani, an NBC Channel 10 reporter, was fined $1,000 for each day he refused to reveal the source who leaked an FBI videotape which documented instances of corruption in the mayor’s office.

In total, the reporter was fined $85,000, but his employer picked up the bill.

“[Paying the reporter’s fine] is the most important thing that news industry employers can do,” said Linda Foley, president of The Newspaper Guild in Washington, D.C. “We’ve put a premium on making sure first that the employer always backs up the reporter.”

She said the right to protect sources is necessary to make sure that the United States has a free press, and that it is able to ensure that reporters are guaranteed First Amendment rights.

If journalists report information solely from official sources, she said, the media would be forced to produce news stories that aren’t balanced or comprehensive. “If all the information we reported came from official sources on the record, the news would be pretty damn bland and one-sided,” Foley said. “The public would never get the complete story on what’s really happening, and that’s dangerous.

“If people can’t expect some confidentiality, then you’re never going to have any cases of wrongdoing exposed. This may spell the end of investigative journalism as we know it.”

Foley said the courts’ growing tendency to rule against reporters is two-fold: public disdain with the media, and national security concerns following the attacks of 9/11.

“Right now, there’s a tremendous mistrust of the media,” Foley said. She said bad reporting, reporter sloppiness and the growing disconnect between large media conglomerates and the public have made it easier for the public to side with the courts. “When the public doesn’t feel a sense of trust with what the media does, they’re not going to side with us as much as they have in the past.”

In addition to the perilous issue of mistrust, the public is progressively more willing to sacrifice civil liberties in lieu of a higher level of perceived security.

In response, the Guild is taking a new course to fight for its reporters. The Guild is working on a long-term goal to institute a federal shield law for reporters, which would aim to protect the media’s right to keep sources confidential.

There are currently shield laws in 31 states and the District of Columbia. However, no federal law exists that would extend to federal court proceedings.

Also, in an effort spearheaded by reporters at the Star Tribune following the Wakefield case, the national Reporters Committee for Freedom of the Press has started a petition in an endeavor to guarantee reporters’ rights and the absolute freedom of the press. The petition has been signed by nearly 4500 journalists and First Amendment advocates, and Foley hopes it will be a unifying force in the ongoing fight for reporters’ rights.

On Friday, the Guild received a boost from a legislator, when Sen. Christopher Dodd (D-Conn.) introduced to Congress a federal shield law that would provide an "absolute protection" for confidential sources used by reporters.

"This legislation is fundamentally about good government and the free and unfettered flow of information to the public," Dodd said in a statement released Friday. "The American people deserve access to a wide array of views so that they can make informed decisions and effectively participate in matters of public concern.”

In the statement, Dodd said The Free Speech Protection Act of 2004 will help alleviate inconsistencies in court decisions and state statutes that provide protections for individuals and organizations that gather and disseminate news.

Dodd said that the legislation he introduced will help protect the rights of the media, and to ensure that the government “remains open and accountable to its citizens.”

The legislation, if passed, could represent a significant boon for reporters’ rights at a time when the media climate is ominous.

“Courts in the past have upheld journalists’ rights, but I’m not so sure that any court today would side with us right now,” Foley said. “Usually we’ve been able to dodge the bullet, but I think we’re in for a rough ride. We have to bond together, stand up and fight.”