Guest Opinions

Leaks of policy discussions by anonymous sources can chill debate

Bill Myers
Bill Myers

In his commentary last week, “I don’t want Sessions deciding what we know about government,” Bill Manny presents a good case for media’s occasional necessity for anonymous news sources. But as with all important issues, there is another side that needs consideration.

Consider the Idaho Statesman’s Editorial Board, on which both both Bill and I are privileged to participate. Our editorials are preceded by spirited debate among the members. We are a diverse lot with divergent world views. We wrestle with our individual opinions and eventually publish “unsigned editorials [that] represent the opinion of the Statesman Editorial Board.” Each of our editorials comes with that statement.

Now consider what would happen if our individual positions were published by the Statesman. I doubt I would be the only member to resign. That’s because I value the ability to express provocative views in confidence, sometimes just to challenge both my views and those of my colleagues. Leaking those discussions would surely chill the debate and lead to less thoughtful opinions.

In our courts, facts are of paramount importance for a judge or jury to fairly decide the case before them. The facts can determine whether a murder defendant lives or dies. So the courts impose a detailed system of rules to determine the facts. Hearsay is banned except in carefully crafted exceptions. Facts need to be authenticated or they are not facts in the court.

In much more mundane cases, federal courts are asked to review federal agency actions to determine whether the agency took the action in a procedurally correct manner. As a rule, the courts will not consider an agency’s internal deliberations that preceded the decision because to do so would, as with the editorial board, chill agency decision-making. That is a cost that the courts will not impose on the agencies.

Just a few pages from Bill Manny’s commentary was a story based on leaks of President Trump’s phone conversations with the leaders of two other nations. Upon learning of the breach of confidence, those leaders and other world leaders will be less inclined to express candid opinions with our leaders. We should be promoting, not discouraging, frank talk at a time when international tensions can easily spill over to actual conflicts.

Attorney General Sessions could not prosecute an illegal leak unless Congress had first passed a law making the leak illegal. Why would Congress pass laws that impede transparency and dissemination of knowledge? For the obvious reasons that those benefits can be clearly outweighed by our national security or the individual security of members of the military or clandestine services.

Lastly, while I am greatly comforted by the high bar that the Statesman sets for use of anonymous sources, I know of no binding journalism rules that would punish unscrupulous, or simply lazy, media outlets that don’t look very warily at a leaker in search of nothing more than the egotistical gratification of seeing “their” story in print or on the nightly news.

If an anonymous source comes forward, ask whether there is a legitimate reason the information has not been publicized. If none is apparent, tell the source that if the allegations cannot be independently verified or the source isn’t willing to go on the record, the information will not be used. Then the journalists won’t need to cite to anonymous sources and can instead shine the light on verified facts that come with attribution. That will allow the public, not the government or the journalists, to be the arbiters of truth.

Bill Myers is an attorney in private practice at Holland & Hart in Boise and a member of the Idaho Statesman Editorial Board. His views are his own and do not necessarily represent the board’s opinion.

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