Hey, maybe don’t jail journalists for doing their job

The former governor of Mississippi, Phil Bryant, played a yearslong role in efforts to channel welfare funds to a friend’s pharmaceutical startup and an athletic facility, diverting $77 million away from applicants seeking taxpayer-funded assistance in the nation’s poorest state, of whom the overwhelming majority were denied benefits.

That was the groundbreaking revelation of “The Backchannel,” a news series published by Mississippi Today reporter Anna Wolfe, which later won her the 2023 Pulitzer Prize for local reporting. She did so through a combination of countless public records requests, anonymous interviews, and a handful of leaked documents — including thousands of text messages — provided by trusted sources on the condition of anonymity.

One of the publication’s higher-ups was eventually sued for defamation by Bryant, and in July of last year the charges expanded to include Wolfe and her editor. The former governor didn’t contest the content of the articles themselves, instead citing comments made by the publication’s employees after the series hit news stands. The lawsuit spawned a court order requiring Wolfe to disclose her sources by early June or face jail time, a demand the paper turned down with an appeal to the state supreme court.

“With our appeal, the stakes are incredibly high,” wrote Adam Ganucheau, Mississippi Today's editor-in-chief, in a column. “The (Mississippi) Supreme Court could guarantee these critical rights for the first time in our state’s history, or it could establish a dangerous precedent for Mississippi journalists and the public at large by tossing aside an essential First Amendment protection.”

In some 40 of the 50 United States, so-called “shield laws” would make such a court order illegal, according to the Reporters Committee for Freedom of the Press. Those 80% of states have recognized that reporters need specific protections from otherwise mandatory disclosure practices: good journalism sometimes demands help from sources who require discretion. And a reporter can only provide transparency when those anonymous sources can trust the writer not to share their identity.

There’s very little legal protection for someone whose identity is wrongfully shared by news media. Other than a reporter’s word, anonymous sources have no guarantee that their reputations, jobs or even physical safety will stay intact after sharing something with the news in confidence.

The Society of Professional Journalists Code of Ethics — and Southeast Iowa Union editorial preference — urge reporters to avoid anonymous sources if possible, because it’s important that readers understand the motives and reliability of anyone quoted in any story. But when a source faces a real possibility of harm and has information that cannot be obtained elsewhere, they can be granted anonymity. Reporters don’t tell their spouses, family members, or closest friends where they got the info anonymous sources provide. Their name and involvement will only ever be known by themselves, the reporter, and that reporter’s editor.

It is difficult to overstate how important this tool is for hard-hitting, investigative journalism. At the Southeast Iowa Union, we’ve used it to speak with people who helped describe the sense of desperation and challenges faced by undocumented immigrants firsthand, confirmed investigations of a departing ambulance director who some staff accused of workplace retaliation, and provided background about three Mid-Prairie administrators who now face hearings for alleged violations of state ethical codes.

By their very nature, these more sensitive stories are unquestionably some of the most important that local newsrooms tell. Court-mandated disclosure would create a chilling effect by rendering the promise of anonymity meaningless once push comes to shove, and then doing the shoving.

And yet, in states like Iowa and Mississippi, there is no statute to protect reporters from politically-motivated demands for rightfully confidential information.

Iowa’s supreme court has supplied some favorable rulings, declaring in 1990 and 2002 cases that reporters don’t have to share confidential sources or unpublished information if they fall “within the class of persons qualifying for the privilege" of immunity, and if said information was obtained during the "news gathering process.” But it’s done little do define “class of persons" or "news gathering process" in the years since, and courts tend to rule in favor disclosure in criminal cases, grand jury proceedings and libel suits, according to the Student Press Law Center.

Mississippi’s lower courts, meanwhile, have recognized a similar privilege for reporters, but not in defamation cases, according to the Student Press Law Center, and not at all in the appellate courts, according to Ganucheau’s Mississippi Today column.

Precedent-based protections, while helpful, are evidently not a catchall, based on Wolfe’s legal situation in Mississippi. What’s more, whereas a policy on the books offers some level of automatic protection, assurances buried in case law require newsrooms to lawyer up if their journalistic privilege is challenged. That’s expensive, and a lot to ask of local newsrooms which face increasingly tight margins.

Local newsrooms like Mississippi Today represent a bastion of transparency and a keystone of functional democracy. If they cannot afford the legal fees necessary to provide that transparency and act as that keystone, something is horribly wrong.

Over 6,000 miles from the Mississippi Today office, in Yekaterinburg, Russia, Wall Street Journal Reporter Evan Gershkovich was recently convicted of espionage in a trial the outlet calls a “sham,” saying, “Evan is a journalist whose offense was telling the truth about what he saw in wartime Russia.”

The Russian court’s ruling has been blasted by free speech advocates on either side of the aisle and by numerous federal officials. Imagine — the rhetoric goes — a nation where a reporter can get arrested for doing their job, and telling the truth about something that made the government look bad.

Imagine no more. If the Mississippi Supreme Court fails to rule in Wolfe’s favor, it will put her in contempt of court, and land an extremely talented reporter behind bars for the offense of maintaining journalistic integrity. The mere possibility of such an outcome borders on unthinkable.

I’m admittedly biased in favor of reporter’s privilege, being a reporter myself. But this isn’t a matter of a newsperson unnecessarily violating property rights, or carelessly compromising national security, or any other sort of corner case demanding a nuanced evaluation of the rights of free press in relation to other civic virtues. This is a case of a reporter using a tool to facilitate transparency, and a government trying to remove that tool from their toolbox, a blatant violation of the Bill of Rights’ first order of business, the Constitution’s rule Numero Uno to prevent misconstruction or abuse of its powers.

And even if the First Amendment somehow isn’t sufficient to protect journalists like Wolfe — as some lawyers somewhere seem hellbent to prove — Iowa and Mississippi can and should join 40 other states and do it themselves by putting their own law on the books. Redundant or not, such a policy would protect journalists and their sources, and in turn, protect taxpayers, whether the lawyers like it or not.

Comments: Kalen.McCain@southeastiowaunion.com