By Joel Thurtell
A federal judge has ordered the Detroit Free Press to reveal the names of US Justice Department officials who illegally disclosed secret grand jury information about a former assistant US attorney, Richard Convertino.
Convertino has sued the Justice Department. He’s trying to learn which US Justice Department officials illegally leaked negative information about him for a January 17, 2004 Free Press story.
Four documents are basic to understanding the case involving a star Free Press reporter, David Ashenfelter, and the former federal prosecutor, Richard Convertino. The documents are:
I. Professional Integrity section of Detroit Free Press-Newspaper Guild labor agreement
II. “3. Attribution, unnamed sources” and “4. Confidentiality” in December 13, 1984 “Free Press Ethics Guidelines.”
III. “Confidentiality” clause of March 3, 2001 “Detroit Free Press Ethics Policy” in place January 2004.
IV. “3. WE PROTECT THE INTEGRITY OF THE FREE PRESS,” February 25, 2004 “Detroit Free Press Ethics Policy.”
I. No person employed by the Free Press shall, for any reason, prepare for publication material which is inaccurate, misleading or false.
ARTICLE XI, Section 1 – “Professional Integrity,” from Agreement between Detroit Free Press, Inc. for Detroit Free Press and Newspaper Guild of Detroit.
II. The December 13, 1984 “Free Press Ethics Guidelines” sent to “Free Press newsroom” from then Free Press Executive Editor Dave Lawrence preceded the March 7, 2001 guidelines. Here are excerpts related to confidential sources:
3. Attribution, unnamed sources:
Our readers usually are best served when we can identify news sources by name. We should work hard to identify the source(s) although there will be instances when the pursuit of truth will best be served by not naming a source. Sources will be named unless the reason not to do so is an overriding consideration. Except in a justifiable instance, we will not allow an unnamed source to use us to attack an individual or an organization. We will work hard to corroborate information from any unnamed sources. A decision to use unnamed sources will be made with teh advice and consent of a supervising editor.
Since the U.S. Supreme Court has ruled that the First Amendment does not extend to journalists the absolute right to protect the confidentiality of news sources, reporters on their own cannot guarantee sources confidentiality in a published story. If a demand is made after publication for the source’s identification, a court may compel us to reveal teh source. In circumstances where the demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a supervising editor before a commitment is made. Trust works both ways — the editor must be able to trust the reporter, and vice versa.
III. Text of the “Confidential Sources” section of the March 7, 2001 Detroit Free Press Ethical Guidelines in force on January 17, 2001 when the Free Press published a story based on illegally-leaked information from the US Justice Department. The Free Press policy of December 13, 1983 that preceded the 2001 policy as well as the February 25, 2004 policy follow the 2001 policy that was in effect in January 2004:
CONFIDENTIALITY Because the U.S. Supreme Court has ruled that the First Amendment does not extend to journalists the absolute right to protect the confidentiality of news sources, reporters on their own cannot guarantee sources confidentiality. If a demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a department head or higher editor before a commitment is made.
More recently, the Supreme court has ruled that the First Amendment does not bar a breach of contract suit for damages when a newspaper breaks a promise of confidentiality. That breach can arise from disclosing a source’s name, inadvertently or otherwise, from too detailed a description of the source or from an inadequately disguised photograph.
These legal concerns suggest that unnecessary promises of confidentiality be avoided, and the need for the promise be weighed against its value.
In making such a promise, take care to avoid ambiguity. Keep the promise specific; a pledge to not use a source’s name is preferable to agreeing to make the source unidentifiable.
Also, take reasonable steps to insure a promise is kept: Make sure the commitment is known by supervisors and by photo editors and others who might inadvertently disclose an identity.
If a promise goes beyond the source’s name, consider reading the description back to the source to insure the source is comfortable with it.
If there appears to be a need to break a promise, seek advice from legal counsel.
Further on in the same document, the subject of confidential sources was addressed again:
SOURCES They should be named. We don’t use unnamed sources unless absolutely necessary to tell the story.
– When we’re forced to use unnamed sources, we must strive for multiple sourcing. When we can’t name a source, we must be as specific as possible about identifying the person, to attempt to preserve the credibility of the story.
– Avoid using the word “source” if possible; “person” is preferable.
– We must strive to explain each time to readers why we’re not naming a source. (The explanation doesn’t have to accompany the first reference to the source, but should be high enough to give the reader appropriate knowledge.)
– In finding people to quote in a story, whenever possible and appropriate strive for a diversity of sources — people of more than one race, age group, gender and geographic locations.
IV. On February 25, 2004, Free Press managers replaced the 2001 ethics guidelines with a 10-point set of rules for news reporting entitled “Detroit Free Press Ethics Policy.” The new policy was implemented five weeks after the January 17, 2004 Convertino story. Here are portions of the new policy dealing with confidential sources:
3. WE PROTECT THE INTEGRITY OF THE FREE PRESS
We name our sources. The use of unidentified sources in published material requires the approval of a managing editor or the highest-ranking editor available.