Cases pit US crime fighters against a free press

Americans weary of the widespread coverage of Chandra Levy's disappearance may find it difficult to appreciate the importance of a free press just now.

But this summer, journalists and First Amendment experts are increasingly concerned that press rights are under fire and that the government is the one taking aim.

Tomorrow, a woman who has been sitting in a Houston jail cell since July because she wouldn't comply with a subpoena to turn over research, will break the record for the longest time served by a writer for contempt of court.

Last week, an Associated Press reporter received a letter from a US attorney explaining that the government had subpoenaed his phone records from the phone company in May without telling him, in what some in the media assume was an attempt to find a government source.

And if that weren't enough to send those in the media running for their copies of the Constitution, tomorrow, the Senate is scheduled to hold hearings on legislation that would punish current and former government employees for leaking classified information - an effort to stifle the news before it can get to reporters.

The convergence of these situations, particularly the subpoenas, has prompted a debate about whether the new administration is shifting Washington's decades-old policy about treatment of the media during investigations, or is just making a few mistakes as it settles in.

"I'm not persuaded yet that this is a new policy," says Floyd Abrams, a First Amendment lawyer. "I think the administration is feeling its way. But even if that's correct, it's disturbing that the Department of Justice has twice in such a short time taken positions so troubling."

It's been 10 years since the last time the Justice Department is known to have subpoenaed a journalist's phone records. It's been even longer since federal regulations were set up to protect members of the fourth estate from government invasions of privacy.

During the Watergate era, the government took steps to regulate its treatment of the media. Subpoenaing reporters' phone records was addressed in particular -a step to be taken only when all other reasonable alternatives had been exhausted. It's even rarer for a reporter not to be informed in advance, although it's allowable if a threat to the integrity of the investigation might exist.

Democratic and Republican administrations have followed the regulations for the past 30 years, and the Bush Department of Justice said last week that it has made no changes to the policy with regard to subpoenas.

But the AP case has alarmed many observers. The assumption, based on the timing of the subpoena, is that reporter John Solomon's phone records were wanted in connection with a story he wrote in May about a wiretap connected with the federal investigation of Sen. Robert Torricelli (D) of New Jersey. Unlike other subpoenas the wire service receives, it didn't have a chance to dispute this one ahead of time.

"We see nothing that would have justified what they did here. It was a secret invasion of the privacy of that reporter and of the newsgathering process," says Dave Tomlin, a veteran reporter and assistant to AP's president. "The fact that an action of this kind is so very rare is a good indication of how extreme it is."

In Texas, Vanessa Leggett remains in jail after refusing to turn over research to the FBI, saying it would compromise confidentiality agreements with sources. In a Newsweek article penned from jail, she writes, "How could future sources feel secure confiding in me, if I didn't keep my word to those involved...?"

Despite such setbacks, journalists are better off now than a century ago, when they were afforded virtually no protection. Today, 31 states and the District of Columbia have shield laws that protect journalists and sources. And freedom-of-information provisions didn't exist until the mid-1960s, about the same time courts began allowing the press more leeway.

"Roughly 90 percent of the First Amendment case law, and much of it protective of speech and press, has come out since I first started teaching in this area" 40 years ago, says Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia.

The branches of government have also come out in support of the media. A Senate committee voted a decade ago not to subpoena reporter phone records to see

who leaked information about Anita Hill during the Clarence Thomas confirmation hearings, says Mr. Abrams, who represented a reporter involved. And President Clinton vetoed legislation similar to that being discussed tomorrow in Congress.

But some observers are skeptical about the current administration.

"It's only been in the last few months, since this administration took over, that we've been seeing this outbreak in Justice Department officials trying to get journalists to do their investigating for them," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "It's an atmosphere, I guess, is the way I would describe it."

If there is in fact a shift in policy, it may be tough to convince the public that it's a bad thing. Media credibility has plummeted in recent years. In a poll released on July 4, the Freedom Forum's First Amendment Center reported that 46 percent of Americans think the press has too much freedom, up from 38 percent in 1997.

The people in the survey are "clearly not thinking about subpoenas; they're thinking about Geraldo [Rivera]," says Kenneth Paulson, executive director of the center.

Three-quarters say they expect the media to be a government watchdog. But even so, "if you have half the American public saying that freedom of the press goes too far, there won't be much public support for giving the news media the right to avoid subpoenas."