Whistleblowers Thwarted Anew.

...the chill from the extinguishing of the fires of liberty.

(The New York Times)

Newspaper Withholding Two Articles After Jailing Saturday, July 9, 2005

By ROBERT D. McFADDEN

Published: July 9, 2005

The editor of The Cleveland Plain Dealer said last night that the newspaper, acting on the advice of its lawyers, was withholding publication of two major investigative articles because they were based on illegally leaked documents and could lead to penalties against the paper and the jailing of reporters.

The editor, Doug Clifton, said lawyers for The Plain Dealer had concluded that the newspaper, Ohio's largest daily, would probably be found culpable if the authorities were to investigate the leaks and that reporters might be forced to identify confidential sources to a grand jury or go to jail.

"Basically, we have come by material leaked to us that would be problematical for the person who leaked it," Mr. Clifton said in a telephone interview. "The material was under seal or something along those lines."

In an earlier interview with the trade journal Editor & Publisher, which published an article on its Web site late yesterday, Mr. Clifton said that lawyers for The Plain Dealer and its owner, Newhouse Newspapers, had strongly recommended against publication of the articles.

"They've said, This is a super, super high-risk endeavor and you would, you know, you'd lose," Mr. Clifton told Editor & Publisher. "The reporters say, 'Well, we're willing to go to jail,' and I'm willing to go to jail if it gets laid on me, but the newspaper isn't willing to go to jail."

Mr. Clifton likened the situation to the cases of Judith Miller, an investigative reporter for The New York Times, who was sent to jail by a federal judge on Wednesday for refusing to divulge the identity of a confidential source, and of Matthew Cooper of Time magazine, who was spared jail after his source released him from a promise of confidentiality, freeing him to testify before the grand jury.

In the most serious confrontation between the press and the government since the Pentagon Papers case in 1971, Ms. Miller and Mr. Cooper were held in civil contempt last year for not cooperating with a federal prosecutor's inquiry into the illegal disclosure of the identity of a covert operative for the Central Intelligence Agency. The Supreme Court refused to hear the reporters' appeals on June 27.

If anything, Mr. Clifton said, The Plain Dealer's potential legal problem with the leaked documents was "even more pointed" than the cases of Ms. Miller and Mr. Cooper.

"These are documents that someone had and should not have released to anyone else," he said. If an investigation were pursued, the newspaper, its reporters and their sources could all face court penalties for unauthorized disclosures.

Mr. Clifton declined to provide details about the two investigative articles being withheld, but he characterized them as "profoundly important," adding, "They would have been of significant interest to the public." Asked if they might be published at some later date, he said, "Not in the short term."

The Plain Dealer, founded in 1842, is a distinguished name in American journalism and was listed last year as the nation's 21st largest daily.

Mr. Clifton noted that he had first disclosed his newspaper's decision to withhold publication of the two articles in a column he wrote for The Plain Dealer on June 30 in defense of journalists like Ms. Miller and Mr. Cooper who refuse to name confidential sources.

"Take away a reporter's ability to protect a tipster's anonymity and you deny the public vital information," Mr. Clifton wrote. And to dramatize the point, he concluded his column by telling readers that The Plain Dealer was itself obliged to withhold stories based on illegal disclosures for fear of the legal consequences.

"As I write this, two stories of profound importance languish in our hands," Mr. Clifton wrote. "The public would be well-served to know them, but both are based on documents leaked to us by people who would face deep trouble for having leaked them. Publishing the stories would almost certainly lead to a leak investigation and the ultimate choice: talk or go to jail. Because talking isn't an option and jail is too high a price to pay, these two stories will go untold for now. How many more are out there?"

Mr. Clifton said he was surprised that there had been so little public reaction to his disclosure of "something that newspapers typically don't reveal - that real live news had been stifled."

"I hoped the public would be bothered by that," he said.