When The Bench Uses a Club

What you see often depends on where you sit. If it is in a newsroom, you probably believe what democracy needs most is to protect the free flow of information. If it is on a judicial bench or in a prosecutor's office, you probably focus on respect for the rule of law. In truth, free press and fair trial are both important values. But they can collide, and increasingly journalists lose. News organizations find themselves ever more under court order to reveal confidential sources and sometimes to hand over notes en bloc -- often to a lawyer on a fishing expedition for anything that might help.

In an extreme case that captured headlines last week, a journalist's sources were stripped bare without the reporter even being notified of the search. In Hamilton County, Ohio, a prosecutor ordered a secret electronic snoop through the records of 35 million telephone calls made between March 1 and June 15 from 655,000 southwestern Ohio lines to find any potential corporate leakers who had called the home or office of Wall Street Journal Pittsburgh bureau reporter Alecia Swasy while she was researching stories that embarrassed Procter & Gamble, a major Cincinnati area employer.

Swasy is now enduring one of the two main results of the subpoena epidemic, a chill on her work because confidential sources may not feel safely anonymous. Other reporters have faced worse. In recent months, Libby Averyt of Texas' Corpus Christi Caller-Times and Brian Karem of KMOL-TV in San Antonio were jailed briefly for withholding unpublished or confidential information. Jail, fines or other punishments were threatened against reporters at the Washington Post, Los Angeles Times, Miami Herald, Houston Post and Chronicle, Oakland Tribune and even Florida's Stuart News and Oklahoma's Pryor Daily Times.

In all, U.S. news media faced nearly 4,500 subpoenas in 1989, the only year for which statistics exist. Editors and attorneys agree that the volume has surged since. The demands have expanded beyond criminal cases to civil suits, which now account for a third of all subpoenas. Some involve government policy or alleged libel. Many are routine requests for published stories. But in a rising number of cases, the demands are invasive, the battle is over money, and the conflict strictly involves private parties. That was actually the case in Cincinnati, where P&G failed to prevent the leaking of internal policy debates, then persuaded authorities to view the matter as a criminal violation of laws protecting trade secrets.