SHOULD REPORTERS be jailed for contempt when -- as two reporters for the Atlanta Journal-Constitution recently did -- they refuse to reveal the names of sources in libel litigation? A judge in Georgia ordered the two imprisoned for not disclosing their sources for the ill-fated special edition reporting that Richard Jewell, hero of the Olympic bombing, was suddenly a main suspect. Mr. Jewell turned out to be innocent and sued the newspaper and its reporters, who remain free pending appeal, for allegedly defaming him by going beyond the fact that he was suspected by the FBI and effectively reporting his guilt.
What makes the case disturbing is not just that the judge has ordered sources disclosed and held the reporters in contempt for not complying. The Supreme Court long ago held that reporters enjoy no absolute privilege. But Judge John Mather has taken this step without first assessing whether the names of the sources are even essential to resolving the litigation.
Mr. Jewell's lawyers say they need the sources revealed to prove that a series of sentences published by the newspaper were defamatory and published recklessly. These include the unattributed claim that Mr. Jewell fit the FBI's profile of a lone bomber and that investigators believed he planted the bombs.
The newspaper's chief defense is that these statements are true. Truth is an absolute defense against any libel action, and it should not be necessary to know the source of each sentence to assess its truth. In deference to the legitimate First Amendment values at issue whenever reporters are made to reveal sources, discussion of this step should at least await a judgment by the court that the statements are not demonstrably accurate. Discovery of sources should only be contemplated for those statements on which summary judgment cannot be granted.
Few would argue that the journalism in this case was admirable or deny that Mr. Jewell was wronged by a combination of over-eager, shabby reporting and law-enforcement nastiness. But requiring the disclosure of sources is a step that undermines a free press. While it may sometimes be legal, it should never be done more sweepingly than is necessary.