Why Newsday won't reveal sources in the Thomas case


IN THE NEAR FUTURE, Newsday and its reporter Timothy Phelps are likely to be very much in the news. The story will be about our refusal to disclose just how and where he obtained information that led to the first news reports of sexual harassment allegations against Supreme Court Justice nominee Clarence Thomas.

Newsday and Mr. Phelps already have told the U.S. Senate's special counsel that we will not reveal undisclosed sources and will not discuss unpublished information. The counsel, in turn, has indicated that his next step may be the issuance of a subpoena to try to compel testimony under oath.

Such a subpoena would be wrong; it would be unwarranted, improper and ill-advised. We will oppose it, as is our right.

But it's also our responsibility to oppose it. Because by protecting our rights, we are protecting your right to know information that is both important and true. I believe this so strongly that I wanted to let you know not only what is happening, but why we are refusing to cooperate in this hunt.

Let me summarize what has happened to date and then discuss the issues.

On Saturday, Oct. 5, 1991, Phelps first reported that University of Oklahoma law school professor Anita Hill had informed the FBI that she had been sexually harassed by Mr. Thomas while employed at the Equal Employment Opportunity Commission. That story, which was distributed to hundreds of newspapers Saturday night by the Los Angeles Times-Washington Post News Service, was published in the early editions of the next day's newspapers. In addition, Nina Totenberg of National Public Radio, who also had been researching the story Saturday, broadcast a report later Sunday morning on NPR that contained nearly identical charges.

The stories detailed the allegations and noted that, while key members of the Senate Judiciary Committee were aware of the charges, the committee had decided not to make them public before the nomination was sent to the full Senate for a vote. As all of you are aware, the news reports led to a reopening of the confirmation hearings and touched off a national debate -- a debate not just about the allegations but also about the Senate confirmation process and about the nature and extent of sexual harassment in the country today.

The Newsday story, which was confirmed by Ms. Hill before publication, was the result of a long and careful journalistic effort by Mr. Phelps. It was not an isolated story but a part of an extensive series of detailed and thoughtful reports that Mr. Phelps had done on Mr. Thomas and the confirmation process dating back to early July, when the nomination was announced.

There has been no charge that the story was inaccurate. In fact, every word of the story was true. And there has been no suggestion that either Mr. Phelps or Ms. Totenberg broke any laws or violated any Senate rules in reporting their stories. Nonetheless, one outgrowth of the furor that resulted was Senate Resolution 202, authorizing an investigation by a special counsel into whether "any unauthorized disclosure of non-public confidential information from Senate documents" had taken place.

The special counsel has now been appointed. He is equipped with the power to obtain subpoenas and is armed with the resources of Congress' General Accounting Office and the FBI.

Mr. Phelps, Newsday and Ms. Totenberg have been contacted by the special counsel, who has asked that they disclose the sources of information in their reports. Newsday and Mr. Phelps have stated that they will not reveal to the Senate's investigator undisclosed sources and will not discuss unpublished information. A similar position has been taken by Ms. Totenberg. The special counsel has implied that his next move may be to issue a subpoena to compel them to testify under oath concerning their sources.

We think this is wrong-headed and improper for several reasons. As you read this, keep in mind this basic truth: While the First Amendment in practice protects the freedom of the press, its objective is to protect your right to information, free from government interference.

First, Newsday and Mr. Phelps did nothing wrong. We published an unquestionably accurate account of a serious allegation regarding a nominee to the nation's highest court. The information clearly was a matter of legitimate public concern respecting a vital public issue. The Supreme Court repeatedly has recognized that such reporting is entitled to the greatest protection available under the First Amendment.

Second, the Supreme Court also has recognized that the gathering of news is an essential and inseparable component of the dissemination of news. Information must be obtained before it can be reported. Responsible newspapers, like Newsday, then verify it. And securing information of interest to the public sometimes requires the press to make commitments to sources that their identities will not be disclosed.

Without the promise of confidentiality, and the confidence of sources that such promises will be kept, a wealth of important information would forever remain secret. Without such sources, the public might never have learned about the Pentagon Papers or the full scope of Watergate. Or, for that matter, about the allegations against Mr. Thomas, since at the time Mr. Phelps wrote his story the allegations were known to the FBI, to the White House and to some members of the Senate committee, but there was no plan to make them known to the public, or even to the full Senate.

Third, the Senate may well wish to investigate whether its members or employees broke Senate rules. That is its right. But there has never been any suggestion that Mr. Phelps or Ms. Totenberg broke any law or any Senate rule. And that raises the question of why the Senate seems intent on starting its investigation by turning its subpoena power first against reporters, whose conduct was above reproach, whose efforts served the public interest and whose activities are protected by the First Amendment.

Indeed, it seems ironic as well as constitutionally questionable that in a search to determine whether its own rules have been violated, the Senate is talking about aiming a government subpoena, with its implied threat of fines or jail, against journalists who are not bound by Senate rules, and who were acting both properly and responsibly in the course of their work.

There have been slightly more than 100 Supreme Court justices in the nation's entire history. Clarence Thomas replaced a man who had been appointed by President Johnson. A year earlier, Justice William Brennan stepped down after serving on the court for more than 30 years. Mr. Thomas may be contributing to decisions that will have a profound effect on this nation well into the 21st century. His confirmation was as important in many respects to the American people as a presidential election.

The proponents of the Senate investigation stated that their purpose was "to restore the public's faith and trust in this institution." That's a worthwhile goal. But trying to intimidate reporters is not the way to achieve it.

Mr. Phelps did his job and did it well in bringing this information to the public about the nominee and the confirmation process. We will defend Mr. Phelps, our First Amendment rights and your right to be informed. We will go to whatever lengths are necessary to ensure that neither this newspaper, nor its reporters, nor any other journalists are intimidated in their attempts to investigate government institutions, government officials and government decision-making.

Robert M. Johnson is publisher and chief executive of Newsday.

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