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When a journalist betrays his source
By John Virtue

The question of a journalist’s ethical duty to protect the identity of his confidential sources is at the heart of a pending trial that has its origins in an investigative report on American business practices in Latin America.

Hardly a year goes by without an American journalist being jailed for refusing a judge’s order to reveal the name of a source for a news story. Inevitably, the journalist prefers jail to breaking the promise he has made to the source to protect his identity.

That changed when Michael Gallagher, a reporter fired by The Cincinnati Enquirer, revealed the source for an investigative report on the operations of Chiquita Brands International in Colombia and Central America.

Now the source, a former Chiquita lawyer named George Ventura, faces in several months a trial that could lead to as much as 12 ½ years in prison. He is charged by the State of Ohio with giving Gallagher voice-mail codes and computer information of Chiquita officials that enabled the reporter to gain confidential information on the company. Like the newspaper, Chiquita is based in Cincinnati and is one of the state’s largest and most influential companies.

(The banana war that the United States has waged with the European Union over preferences given to bananas from former European colonies in the Caribbean was waged mainly at the behest of Chiquita Brands International.)

Ventura, who served as a lawyer for Chiquita in Ecuador and Honduras from 1991 to 1995, plans to mount an original defense. His lawyers will argue that Ohio’s "shield law," designed to protect journalists from having to reveal their sources, should prevent Gallagher from testifying against Ventura.

Gallagher’s 18-page report, published last May, accused Chiquita Brands International of, among other things, bribery in Colombia, illegally operating companies in Guatemala and Honduras and exposing people to toxic chemicals in Costa Rica. Gallagher quoted verbatim incriminating conversations from the voice-mail messages he was able to hear. Two months after the publication, the newspaper, which is owned by the Gannett Company, shocked the news media by firing Gallagher, issuing a page-one apology to Chiquita and agreeing to pay a settlement of $10 million.

Faced with a long prison term, Gallagher, 42, who had promised Ventura anonymity, pleaded guilty to two federal charges of stealing Chiquita’s internal communications and agreed to testify against the lawyer.

Gallagher’s decision has horrified journalists and their organizations, who believe that the ability to maintain the anonymity of confidential sources is essential to investigative reporting and the role of the press as a watchdog of citizen’s rights in a democracy. Steve Weinberg, at the time executive director of Investigative Reporters and Editors, an American journalists organization with members in many Latin American countries, said in an affidavit filed on behalf of Ventura that disclosing sources threatened the press’ ability to do its job.

"If investigative journalists violate those contracts and word gets around, journalists everywhere will be harmed," he said. "In the end, so is the larger citizenry that depends on investigative journalists to publicize wrongdoing within the public and private sectors of society."

In another affidavit, Sandra Davidson, a journalism professor at the University of Cincinnati, said that sources will be reluctant to talk to journalists because of Gallagher’s actions. "If the sources of information dry up, then the functioning of the whole system collapses," she said.

The New York Times said in an editorial April 7:

"Mr. Gallagher certainly has every right to mount a vigorous defense, but his decision to disclose sources betrays the most basic code of what is undoubtedly now his former profession. The contract between a source and a journalist is one of the sacred bonds, and many a reporter has promised to go to jail to protect such an agreement."

Gallagher had told his editors in October of 1997 that he had access to voice-mail messages, but the newspaper’s lawyers advised him to desist because he was violating federal law. However, he continued to listen to the messages.

According to a U.S. Supreme Court ruling, a journalist must respond to a judicial citation. This is why journalists can be jailed for refusing to reveal the identity of a source. However, the same court in 1991 ruled that a promise of anonymity is a gentleman’s agreement that has the legal status of a contract. The ruling came after the Minneapolis Star Tribune identified a Republican Party publicist who told a reporter that a Democratic candidate for the governorship of Minnesota had been arrested for shoplifting as a juvenile. Although the publicist had been promised anonymity, the newspaper’s editor identified the man because he considered the story to be dirty politics. The publicity was fired and successfully sued the newspaper for breach of contract.

Ironically, Ventura, the former Chiquita lawyer, will be able to sue Gallagher and the Cincinnati Enquirer for a similar breach of contract.

But the damage to investigative reporting, not only in the United States, has already been done.

(John Virtue, is the publisher of Pulso del Periodismo and the deputy director of the International Media Center at Florida International University. A native of Canada, he spent 17 years with United Press International in Latin America before becoming executive editor of the daily newspaper El Mundo, San Juan, Puerto Rico.)

(April 28th, 1999)