Leaks of vital and often private information to the public have tormented the Trump administration and have motivated the Attorney General Jeff Sessions, to double the size of the task force seeking to reveal the people involved.
This is not a new issue, and Fresno stood at the world epicenter of a controversy over leaked secret documents 41 years ago this month when four employees of the Fresno Bee were imprisoned for failing to reveal their sources.
A “leak” is the secret revelation by a person to a public forum where the leaker seeks the commitment from the person with whom he is dealing to promise the confidentiality of his persona. The information transmitted can be either oral or written.
The basis of the claimed secrecy can vary widely. Sometimes it is national security. As in the Bee Four case, it was the secrecy required of Grand Jury testimony in order to protect those investigated but not charged. Often it is just the wish of public officials to keep their deliberations and indeed conflicts secret such a conflicts in the Trump White House.
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The need for leaks and both their utility and harmfulness are palpable. They can be utilized to reveal corruption, treason, or immoral conduct. A free press often relies on these to search for concealed truths. But they can also endanger national security interests.
The problem arises with leaks when a government agency seeks to compel the publisher of the leak to reveal his source. The publisher then claims the First Amendment and the courts seek to adjudicate this issue.
In the Bee Four case, four employees of The Bee, George Gruner, the late Jim Bort, William Patterson, and Joe Rosato refused to reveal where they got a grand jury transcript that showed a public figure took money to vote favorably on a upcoming public grant of a garbage contract. They claimed a reporter’s privilege. I was their lead counsel.
A privilege is an old concept in the law. It allows recipients of information to refuse to testify as to a communication and not be prosecuted. The most widely known are that of priest/penitent, doctor/patient, and lawyer/client.
Many states have given reporters a “limited privilege” which requires the government to seek all other sources first before the reporter is compelled. Then he must speak or go to jail for civil contempt as did the Bee Four. Their secret has not been revealed to this day, although they spent time in jail until Superior Court Judge Hollis Best released them in the belief that they would never talk.
Overwhelmingly, reporters and press officials believe that leaks are absolutely necessary to a free functioning government. The inviolate protection of sources is an ethic taught in all journalism schools. Recently, leaks have shown Trump officials to be less than forthcoming in their Russian contacts. And that the Democratic National Committee had favored Hillary Clinton over Bernie Sanders.
Yet, there is a powerful counterforce here: the need to keep things secret like Grand Jury testimony, or profound national secrets. This tension between a free press and the need for secrecy is what causes litigation problems and controversy. It is the typical difficult Constitutional case of two very valid polar points: the need of a free press, and the need for secrecy and the rule of law.
This problem now is further clouded by the new media, internet based or cable, which blanket our land and which may not be subject to the same ethics or restraints of mainstream media.
So when folks talk these days about leaks, they are treading on well travel
led but immensely difficult grounds. We desperately need leaks to preserve a free press and land and to cast a critical light on those claiming secrecy, yet in many instances, the need for secrecy is well founded.
This tension has existed for many decades and its current searing flames of controversy show no signs of abating. We had hoped the Bee Four Case would somehow resolve this problem, but it is as difficult and as vigorous now as it was at that time.
Phil Fullerton of Fresno is a retired lawyer. Email him at Puyricard8@ sbcglobal.net.
Update: An earlier version of the story referenced Jim Patterson as a member of The Bee Four. His name was William K. Patterson.