Constitution Daily

Smart conversation from the National Constitution Center

Shut off leaks at the source, not by jailing reporters

July 13, 2012 by Gene Policinski


Trey Gowdy, a congressman from South Carolina, is a former federal prosecutor whose biography touts his record of putting a most-wanted criminal in jail. But his recent claim that news reporters “aspire” to spend time in jail shows he needs to spend more time in newsrooms, and more thought on the gravity of jailing someone.

The first-term Republican’s comments came this week as a House Judiciary subcommittee considered recent government leaks about Obama administration attempts to combat terrorism. Some GOP members say the leaks are politically inspired, aimed at helping the president’s re-election chances.

“Put them in front of the grand jury,” Gowdy told his fellow committee members as they discussed journalists who publish or broadcast classified information from confidential sources. “You either answer the question or you’re going to be held in contempt and go to jail, which is what I thought all reporters aspire to do anyway. I thought that was the crown jewel of the reporter’s resume, to actually go to jail protecting a source.”


Reporters aspire to report to the public — whether their motive is high-minded or career-oriented. Reporting on what government is doing generally involves documenting what officials have said, what legislative bodies have done or how courts have ruled.

On occasion — and for most journalists that occasion is rare — journalists report on what government has not said, but what someone in the know is willing to tell: an “informed source.”

In turn, most politicians pepper the press and public with news releases, press conferences and events designed to let people know what they are doing, hope to do, or will try to keep someone else from doing.

On occasion — and for some politicians, the occasion is not so rare — their public presence also involves making outrageous or political-posturing statements to attract votes or encourage contributions. And history shows that a politician will occasionally provide information privately to reporters or lobbyists — thereby becoming an “informed source.”

Critics of the press delight in creating a caricature of journalists and using that distorted image to justify claims of bias and political motivation — and now, to justify criminal prosecution.

True, some journalists have been hailed by colleagues for principled stands against disclosing sources of information received with a promise of confidentiality. But the movie mythology surrounding the role of Watergate’s famed “Deep Throat” source could lead the naïve or uninformed astray from the reality of how reporters really work — and even how real-life Washington Post reporters Bob Woodward and Carl Bernstein dug up Watergate’s details.

But does anyone really think that the dehumanizing experience of prison, even in the short term, and the potential for financial ruin as judges levy contempt fines payable only from personal resources, are not real concerns for reporters?

Gowdy and other members of Congress calling for revisions of the 1917 Espionage Act to make it easier to prosecute journalists should know better. They should know that the effective way to turn off government leaks that really endanger national security is at the source, so to speak.

And they should know that, so many times in this nation’s history, a free press has been the only effective resource left to the public when government chooses to hide its mistakes or misdeeds. Whether they are exposing the Vietnam War’s “credibility gap,” revealing atrocious medical experiments on minorities decades ago, reporting the Abu Ghraib prison scandal or shining light on bridges to nowhere, most journalists function as the nation’s Founders intended: as watchdogs on government.

Are news reports based on unidentified sources sometimes overused? Yes. Should news consumers be more skeptical of reports based on unnamed sources than of those citing speakers on the record? Yes. Should journalists make every attempt to let the public know the actual sources of information? Yes.

But should Congress try to make it easier to prosecute reporters for telling us what they know? No.

Gene Policinski is Senior Vice President/Executive Director of the First Amendment Center. He is a veteran journalist whose career has included work in newspapers, radio, television and online operations.

This story first appeared on the First Amendment Center’s website at

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