THE CONSTITUTION

Not since the Watergate era has the media's use of confidential sources been so heatedly debated as it is today. Unfortunately, several recent decisions by judges outside California suggest the lessons of that era have been forgotten. Chief among them is the reminder of how an independent press can and must serve as a check on government power.

In 1973, the Washington Post, relying on information obtained from a confidential source, exposed criminal conduct by people at government's highest levels, resulting in the resignation of the president. It is less widely known that Post reporters Bob Woodward and Carl Bernstein were subpoenaed that year by individuals demanding they identify "Deep Throat" and produce all the information they had gathered about the break-in at the Watergate Hotel.

Woodward and Bernstein refused, citing the need to protect their confidential source. A federal district judge agreed.

In the three decades since Watergate, countless investigative reporters have confidentially received information that led to stories on government corruption, corporate misconduct and other wrongdoing that the public needed to and was entitled to know. It is no coincidence that during this period, virtually every state and most federal courts recognized some form of protection for reporters' confidential-source information; some states, like California, even made the protections part of their constitutions.

This confluence makes sense. People who know about illegal or improper actions, particularly by the rich and powerful, often have good reasons not to come forward. If these individuals cannot be assured by reporters that their identities will remain confidential, they will not speak out -- and vital information will not be publicly revealed.

The public interest served by protecting these kinds of communications often seems lost in the recent spate of prosecutions and civil suits over government "leaks." The fallacy frequently espoused by prosecutors (and self-interested plaintiffs' lawyers) is that society's most compelling interest is to prosecute people who break the law. Under this theory, journalists should be forced to reveal the identity of confidential sources any time a source violates the law by revealing information to a reporter.

Yet our society has decided, in a wide variety of circumstances, that the need to protect certain communications outweighs the need to prosecute criminals -- and may even outweigh the rights of a criminal defendant to defend himself.