‘Do Journalists Need a Better Shield?’

Tuesday, December 14, 2004

Re-posted by permission from Legal Affairs magazine. See the Legal Affairs Web site for the full debate.

[On Dec. 8], Time magazine journalist Matthew Cooper and New York Times reporter Judith Miller [went] to trial in Washington, D.C., for refusing to reveal confidential sources. They are the first of several journalists who could face lengthy prison sentences because of charges related to the July 2003 revelation that Valerie Plame was a covert operative of the CIA.

Similar cases abound. Last month a Rhode Island reporter was found guilty of contempt for refusing to reveal a source and the invasion-of-privacy case of Los Alamos scientist Wen Ho Lee may bring other journalists to trial. While 31 states and the District of Columbia have shield laws designed to protect journalists from being forced to reveal their sources, no such federal law exists.

Do journalists need more protection from prosecution?

Paul McMasters is the First Amendment ombudsman at the First Amendment Center and writes a column distributed to 200 newspapers. Geoffrey R. Stone is Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago and author of Perilous Times: Free Speech in Wartime.

McMasters: 12/6/04, 11:55 AM
I have always thought that the best protection for journalists who needed to protect their confidential sources was the First Amendment, common law, and common sense. And if those didn't work, the Justice Department's own guidelines would kick in.

I am no longer confident, however, that those are sufficient to provide balance when the inevitable conflicts arise between journalists doing their jobs and prosecutors doing their jobs. In the last couple of years, federal prosecutors have seemed far too willing to attempt coercing journalists into becoming part of their investigative teams. Compounding the problem: Courts have seemed far too dismissive of the public's stake in the press's ability to resist these efforts.

On Wednesday (Dec. 8), reporters for Time magazine and The New York Times will find out whether they will be going to jail for up to 18 months. Sentencing is set for Thursday for a television correspondent in Providence, R.I. who may go to jail for up to six months. More than a dozen other journalists face similar fates, all for refusing to give up their sources to federal prosecutors.

The sources are not the only things sought in these forays into reporting practices and newsroom procedures. Federal officials also have gone after telephone records and reporters' notes and reportedly have tried to enlist journalists as informants, get certain information from being reported and forced reporters off of stories they have covered for months or years.

The uneasy balance between reporters and federal officials began to tip as far back as 2001 when Houston free-lance writer Vanessa Leggett was sent off to prison for not handing over interview tapes to federal officials. Not long after, the Justice Department secretly subpoenaed the telephone records of Associated Press reporter John Solomon; officials wanted to know who Solomon was talking to in his reporting on then-U.S. Senator Robert Torricelli, a New Jersey Democrat. A little more than a year later, Solomon, this time working on an investigative project about the war on terrorism, again was targeted by federal officials, who intercepted and held for several weeks a package containing an unclassified FBI report mailed to him from the Philippines by a fellow A.P. correspondent.

Then came the deluge. Now we have a number of criminal and civil investigations ensnaring journalists, forcing them and the news organizations they work for to incur huge legal fees and fines. More importantly, these acts have seriously compromised the ability of the press to inform the public about urgent matters of public policy and government actions.

All of this unfolds in a governmental environment that prizes secrecy and information control far more than the public's right to know. The classification of government information reaches historic records each year. The Freedom of Information Act is being interpreted much more narrowly. Massive amounts of unclassified information have been labeled “sensitive,” thus putting such material beyond the reach of the public and press. More than four million government officials—local, state, and federal—will be subject to signing non-disclosure agreements, violation of which comes with harsh penalties, including jail time.

Under such circumstances, the press's ability to protect sources becomes even more vital than ever. That's why there must be a vigorous and sustained dialogue about whether a federal shield law for reporters is needed to restore some balance to this dangerously out-of-kilter dynamic between the press and prosecutors.

Perhaps the discussion and debate alone will temper Justice's aggressiveness. More importantly, it should help the public to understand that this is first and foremost an issue of free speech in general and dissent in particular. It is about the ability of those with information vital to the public and inconvenient to some government officials to get that word to the public through the press. Then, it should become apparent that a federal shield law is not a special privilege for journalists but a special protection for the public.

Stone: 12/6/04, 05:55 PM
I certainly agree that this is an important issue. But it may be useful to put it into its larger context. In many of the current disputes, the press has claimed the mantle of the First Amendment in arguing that reporters have a constitutional right not to disclose “confidential” information to a grand jury. The essence of the argument is as follows: (1) The press has a First Amendment right (and responsibility) to inform the public. (2) In order to gather information, reporters often have to promise their sources confidentiality. (3) If reporters are compelled to disclose the identity of their sources, the sources will dry up. (4) Therefore, for the government to require a reporter to reveal a source in the course of a grand jury investigation violates the First Amendment.

This is all very logical. Nevertheless, in 1972 the Supreme Court rejected precisely this argument in a closely-divided decision. In Branzburg v. Hayes, the majority of the Court conceded that grand jury subpoenas could plausibly have some impact on the willingness of sources to provide information to the press, but it concluded that there was no proof that the effect of such subpoenas would be significant. Moreover, the majority noted that if it recognized a First Amendment privilege for journalists, it would then have to decide as a matter of constitutional law who is and who is not a “journalist.” Could this new privilege be claimed by a reporter for a school newspaper? By a blogger? By a person writing a book, even if she's never written one before? The majority explained that it would be very harmful for the Court to undertake such an inquiry, because it would be the equivalent of “licensing” the press, something that has always been anathema to the First Amendment.

In light of the decision in Branzburg, why does the press continue to howl that grand jury subpoenas of reporters violate the First Amendment? There are two reasons (apart from the obvious one that it sounds good). First, Justice Powell wrote a stunningly opaque concurring opinion in Branzburg that seemed to leave some wiggle room for a very narrowly-drawn constitutional privilege. Second, any citizen is always free to argue that a Supreme Court decision is wrong and should be overruled. In light of the recent rash of grand jury subpoenas to reporters, perhaps the current Court will overrule Branzburg (though that seems unlikely).

But there is a more intriguing problem here, and it goes to the question of journalistic integrity. After Branzburg, many states enacted statutory shield laws that provide a privilege for journalists. Indeed, 31 states now have such laws, in one form or another. But 19 states and the federal government have not enacted such laws.

Suppose you are a journalist in Washington, D.C., and you know that there is (under current constitutional law) no First Amendment privilege and no statutory privilege governing your conduct. A source tells you “I won't reveal the information you want unless you promise me confidentiality.” What should you do? There are at least three options: (1) You can try to persuade the source to disclose the information without a promise of confidentiality. If she refuses, you can close up shop and go home. (2) You can promise confidentiality “to the extent allowed by law” (perhaps hoping that, if push comes to shove, you can get the Court to overrule Branzburg). (3) You can promise confidentiality.

The nub of the problem at the moment is that too many reporters are arrogantly taking it upon themselves to choose option (3). By so doing, they are either lying to the source or placing themselves above the law. Neither is acceptable or ethical. So, Paul, I'd like to focus for the moment on that question: Is it ethical for a journalist to promise a source confidentiality when the only way she can keep that promise is by violating the law and going to jail?

See the full debate on the Legal Affairs Web site.

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