Thursday, October 10, 2013


Story first appeared on USA TODAY.

Joseph Hosey is facing jail time for simply doing his job.

Hosey, a reporter for in Illinois, has balked at an order to reveal the identity of a confidential source. As a result, Will County Judge Gerald Kinney found the journalist guilty of "minor direct criminal contempt." The judge says Hosey, a 10-year reporting veteran, must pay $1,000 in court costs, additional fines of $300 a day for three months and, after that, spend up to three months in jail.

Luckily, the penalty has been stayed while Hosey appeals. But that hardly alters the fact that the decision is a horrendous example of judicial overreaching. Especially since there is absolutely no indication that the information Hosey disclosed has had a negative impact on anything.

David Cuillier, president of the Society of Professional Journalists, has decried the ruling as "an absolute outrage and an affront to a free press and everything this nation holds dear." I couldn't agree more. Cuillier, a former reporter and editor who teaches journalism at the University of Arizona, says the situation is something he'd expect to encounter in a Third World nation, not in the great state of Illinois.

The episode comes in the midst of a very tough period for journalists seeking important but hard-to-come-by information and the people who provide it to them. The Obama administration has shown unprecedented zeal in clamping down on leakers, prosecuting a record-breaking number of people under the Espionage Act, of all things. And it is seeking to force New York Times reporter James Risen to reveal a secret source.

In the wake of a backlash against its heavy-handed tactics, the Justice Department drafted guidelines providing protection for reporters, and the White House called on Congress to pass a federal shield law that would in many cases safeguard sources' confidentiality. Sen. Charles Schumer, D-N.Y., the bill's chief sponsor, assured me awhile back that he's confident it will pass. But given what's happening on Capitol Hill these days, I wouldn't bet too heavily on much of anything getting done there.

And shield laws, while helpful, are hardly a panacea. Forty-eight states and the District of Columbia have such laws or court precedents that protect anonymity. In fact, Illinois is one of those states. And that makes Kinney's ruling even harder to fathom.

While named sources are always preferable, confidential sources have long played an important role in shedding light on things that the public needs to know. Watergate and the Pentagon Papers are high-profile examples, but there are countless other cases in which nameless whistle-blowers have exposed important abuses via the press. They are a lot less likely to blow those whistles if they think their names will become public.

Hosey's ordeal began earlier this year, when the Patch reporter posted a series of stories packed with vivid details about a particularly gruesome double murder in Joliet in January. The pieces were based in part on confidential police reports. is a nationwide network of hyperlocal news sites owned by AOL.

A lawyer for one of the defendants, arguing that the articles could taint the jury pool, asked Kinney to make Hosey reveal his source. The court collected more than 500 sworn statements from employees of the Joliet Police Department, the Will County State's Attorney's office and lawyers in the case. To the surprise of absolutely no one, all denied that they had anything to do with the leak.

The judge ordered Hosey to turn over all the documents he has relating to the double murder. And if those don't reveal the source, he said Hosey will have to do it. Commendably, the reporter demurred.

Deciding cases like this one is generally a balancing act, in which the judge has to decide whether there is such an overarching need to unmask the source that it outweighs First Amendment and freedom of information concerns. Chuck Tobin, one of the nation's top media lawyers, is hard-pressed to see what that could be in this instance.

"The identity of the person who leaked the police reports to the Patch won't help the court decide whether the defendants are guilty or innocent of these terrible murders," says the Washington, D.C.-based attorney. "So there doesn't seem to be any interest in this case that would outweigh the public's interest, under the Illinois shield law, in helping reporters honor their promises to sources."

He adds, "The leaked records here were police reports about one of the most grisly crimes in recent history. No news organization or journalist should face punitive fines and jail for revealing information so obviously in the public interest."

Lucy Dalglish, the former longtime head of the Reporters Committee for Freedom of the Press, points to a a couple of factors that may have swayed the judge. First of all, she says, jurists tend to give a lot of leeway when such requests come from the defense, given the Sixth Amendment's fair trial imperative.

Also, Kinney may feel that grand jury secrecy has been compromised, and judges hate it when that happens, adds Dalglish, now dean of the Philip Merrill College of Journalism at the University of Maryland.

That said, Dalglish says that, like Tobin, she doesn't see how the outcome of the case could be affected by uncovering the leaker. It simply puts a chill on free speech.

Let's hope cooler heads prevail and the appellate court throws out this punitive order. It's the right thing to do.

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