The law is an effective set of documents that guide the lives of practically all members of society, but it should not always do so for journalists. Just because something is illegal does not mean that it is not the ethical thing to do, for the law and ethics are two distinct entities. A law-guiding approach is frankly too simplistic and does not account for peculiar circumstances.
To this day, the United States does not possess a federal shield law, making it legal for journalists in some states to be forced to testify and name their sources. If they refuse to testify (if subpoenaed) and fail to produce the name(s) of their source(s) under question, then journalists can be held in contempt of court and even be forced to serve prison time. This, of course, depends on the applicable state, for some states give reporters an absolute privilege, most give them a qualified privilege, and some do not even have shield laws on the books.
The national shield law debate was brought to the media forefront in the summer of 2005, as New York Times reporter Judith Miller was jailed for refusing to name her source after the name of a CIA covert operative (Valerie Plame) was released. Even though it was Washington Post columnist Robert Novak who released the name in a July 14, 2003, column, Miller was held in contempt of court after she refused to testify before a grand jury in connection with the leak and ultimately served 85 days in jail. Miller was released after her source, Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, waived confidentiality and gave her permission to testify.
Although they did not end up serving jail time, San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada were threatened with 18 months (of jail time) in 2006. The two writers refused to reveal their source to a federal grand jury regarding how they obtained leaked grand jury testimony that proved steroid use by baseball slugger Barry Bonds. Below, PBS documents the story.
Until a federal shield law is adopted, journalists must continue to be courageous and not reveal their confidential sources. When journalists agree to protect the identity of a source, they must carry out that promise, even if it means serving jail time. In this case, the primary loyalty is to the source, not a grand jury.
When ethics trumps law in journalism, reporters reach the sixth and highest stage of moral development, passing the fifth stage of a legalistic view of society. At the sixth stage, journalists appeal to a universal ethical principle, and here, this involves the Judeo-Christian ethic, which states that people should “love thy neighbor as yourself.” If the rolls were reversed and the journalists were placed in a situation where they provided the confidential information to a source, they would probably feel like they had been abandoned if the source betrayed them and released their name in order to avoid jail time.
The recent trend of reporters willing to serve a prison sentence to protect the identity of their sources is encouraging to those in the profession. If a journalist really cares about his/her loyalties and ethics, then he/she will never desert a source, no matter what the end result.