Red Alert!

By Phillip Blanchard

One of the more interesting workshops at the 2003 ACES conference in Chicago was “Journalism in a Time of Crisis,” with Bill Kovach and Dan Fisher of the Committee of Concerned Journalists. Their point was that our responsibilities are greater under the Homeland Security Act, and that we have to be pretty careful about what we print.

Of course, we should always be careful about what we print. Kovach and Fisher pointed out that the act has not been tested in court. What restrictions the act may impose on the media, of course, is up to the Supreme Court. Kovach and Fisher seemed concerned about avoiding a court battle, which usually is prudent.

However, their guidance did not start from the presumption that a news story, in our judgment, is ready to print when all the usual work has been done. They insisted that the Homeland Security Act required us to determine – exactly how is unclear – whether a story might adversely affect “national security,” which I would point out is a largely undefined term.

Kovach and Fisher assigned the editors in the workshop to split up into groups. Each group read and discussed one of two scenarios and was to decide how their newspapers should proceed. I and three other editors studied this scenario:

The Department of Homeland Security has elevated the national threat level to Orange, the second-highest level of alert, based on intelligence that raises the possibility of an undefined terrorist attack. Officials advise the public to act to protect themselves. A minimal precaution kit, they say, would include water, food supplies, prescription medication, flashlights, batteries, a hand-crank radio, and plastic sheeting and duct tape for use in creating a room in which to wait out a chemical or biological attack.

The largest industry in your town is a chemical plant, which, since the accident in Bophal, India, has been a constant source of concern. There have been several incidents of accidental air and liquid discharges from the plant that produced short-term scares. Fortunately, no one has been seriously affected.

A chemist, who is a close friend of one of your reporters, has said that the government's advice should be taken seriously. Even if there is no terrorist attack, he says, there is a very real possibility of a lethal discharge from the plant he works in. His department discovered serious corrosion in a number of pipes in a section of the plant that could give way at any time, and the government was notified three months ago.

After a significant amount of urging, and promises of anonymity, the frightened and reluctant chemist has agreed to give the reporter details of the report and the potential danger. The chemist also tells you that, since this material was given to the Homeland Security Department voluntarily by his company, it is covered by the new law creating the new category of "sensitive but not classified national security" information. Turning this material over to your reporter is a criminal act. He pleads for you to protect him.

The Homeland Security Act is ambiguous and has not been tested. It is not clear, for example, whether the newspaper could be prosecuted. Your lawyer also suggests that when you go to the plant and to local officials for comment, they may well try to stop you prior to publication. And given the makeup of the local courts, and the Supreme Court, your lawyer thinks they may succeed.

Certainly, he predicts, local officials will argue that you are violating national security by releasing this information. If you are going to publish this, he says, you better have done something to figure out whether this is a matter of national security. And you better have an argument for why it's not.

I and my fellow group members found that scenario to be a “no-brainer.” Yes, there is a story. Yes, you promise anonymity. Yes, you confirm that the report was made, and look at it in document form if possible. The story is that the chemical plant has serious safety problems that could endanger the townspeople. The story should run with no mention of “national security,” because “national security” has nothing to do with it.

Interestingly, when the scenarios were discussed by the larger audience, other speakers insisted that the “national security” aspect had to be included in the story, even though it plainly was irrelevant.

As far as the lawyer goes, I would tell him, “That’s nice,” and tell him to be available to get “local officials” off our backs should they make a fuss. Otherwise, the lawyer should go bill somebody or do whatever it is that lawyers do.

I once had a lawyer sit next to me while I copy-edited a story (the nature of which I do not recall except that it was nothing exceptional), against my wishes. He not only suggested gratuitous qualifications, he also gave me advice on style points. I thanked him and offered to handle a divorce case for his office.