Denting the Shield

Successful investigative journalism has long depended on the court-recognized right of a reporter to protect his sources in most situations by withholding their names from public disclosure. Otherwise, ordinary citizens, fearful of retaliation by powerful people, might hesitate to speak out about wrongdoing. Two cases now seriously threaten to undercut that First Amendment right. In Fresno, Calif., a judge sentenced two editors and two reporters to serve indefinite terms in jail because they refused to reveal how their newspaper, the Fresno Bee, obtained and later printed sealed grand jury testimony. The testimony centered on a bribery and conspiracy indictment of a Fresno city councilman who was involved in city sewage- and garbage-collection contracts. The case became somewhat complicated when Superior Court Judge Denver C. Peckinpah (brother of "blood and guts" movie director Sam Peckinpah) discovered that one of the Bee newsmen had a passkey that gave him unlimited access to all offices in the courthouse (though a reporter from the Oakland Tribune also carried a similar key). Peckinpah called a hearing at which the newsmen refused to say how they had got hold of the grand jury transcripts. All four invoked the California shield law, which states that an editor or reporter "cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having power to issue subpoenas." Nevertheless, Peckinpah promptly held them in contempt, claiming that the shield law unconstitutionally interfered with his judicial powers. Last week the district court of appeals stayed Peckinpah's sentences for a month while it decides whether to rule for the first time on the constitutionality of the shield law.

Transparently Flimsy. On the basis of the Supreme Court's Gertz v. Welch, Inc. decision of June 1974, a Hartford, Conn., judge ruled that former Publisher Gilbert N. Kelman of the weekly Wallingford (Conn.) Post would have to reveal his sources for an article that he wrote and published in October 1972; it linked a Boston philanthropist and dog-track promoter, Joseph M. Linsey, to underworld elements. District Court Judge M. Joseph Blumenfeld reversed his own ruling of two years ago, in which he rejected Linsey's demand, presented in a $5 million libel suit against Kelman, for the names of two people quoted but not identified in the story. Citing the Gertz decision, Blumenfeld now held that Linsey might no longer be defined as a "public figure" and therefore was entitled to get at Kelman's sources in order to try to prove his case for libel. No matter what the consequences, Kelman has said, he will never reveal those sources. His lawyers are planning an appeal against the ruling that Linsey is now essentially a private citizen elevated to sudden renown by news events. Some legal observers also fear that a precedent set in this case will allow an individual to use a libel action to force disclosure of sources, even if the suit itself is transparently flimsy. The ultimate outcome of both cases could decisively shape the future of investigative journalism in the U.S.

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