AP Photo/CBS by Chris Usher
Years after the Wikileaks scandal killed a federal reporter’s shield law bill wending its way through Congress, a recent Justice Department maneuver to obtain journalist records is reigniting hope that a federal reporter’s privilege could become reality.
And some media organizations believe the U.S. Department of Justice’s bold move to subpoena two months’ worth of telephone records of reporters and editors at the Associated Press could lead to the passage of not only a federal reporter shield law but also federal anti-SLAPP legislation.
“Both issues clearly arise from the need in having a vibrant democracy,” said Marc Goldowitz, director of the California Anti-SLAPP Project, a law firm and policy organization that is among several groups pushing for federal legislation known as “anti-SLAPP” laws. Short for “strategic lawsuits against public participation,” such measures provide mechanisms for courts to quickly dispose of meritless suits filed in order to silence critics asserting their speech rights.
“Coupling the two issues is the most natural thing to do,” Goldowitz said of pushing for both a federal reporter shield law and anti-SLAPP legislation. “I really do think there is a good possibility that in this session Congress can enact and the President could sign a bill to enact a federal shield law. And it can be done together with an anti-SLAPP law.”
Three lawmakers announced in May plans to revive legislation establishing a federal reporter shield law.
Obama Administration officials asked Sen. Charles Schumer (D-N.Y.) to reintroduce the Free Flow of Information Act, a previously stalled measure designed to protect reporters from punishment for refusing to identify confidential sources.
Schumer introduced a similar bill in 2009, but it stalled in the Senate amid the controversy over WikiLeaks, a website that disclosed thousands of secret government documents related to the war on terror. Schumer reintroduced the version of the Senate bill that was approved by the Judiciary Committee that year.
Rep. John Conyers, Jr. (D-Mich.), the ranking Democrat on the House Judiciary Committee, also announced plans to reintroduce a version of the reporter shield law that passed the House in 2009. And Rep. Ted Poe (R-Texas) introduced his own variant of the Free Flow of Information Act that would place limits on the ability of government officials to compel members of the media to disclose information.
“I think the public is a little bit more nervous this time around the power of government to surveil its citizens,” said Peter Scheer, executive director of the First Amendment Coalition. “We’re all a little more sensitive now to how much companies like Google and Apple know about us in terms of where we are throughout the day, and we know that the government has access to a great deal of that information. That concern maybe has shifted the center of gravity on these issues.”
The long effort to enact a reporter shield law
Efforts to enact a federal shield law date back to 2007, when the House of Representatives passed a version of the bill in a bipartisan vote. A Senate version of the shield law bill was passed by the Judiciary Committee in 2009, but the legislation was never brought to the Senate floor.
Efforts to pass the law effectively died after Wikileaks’ publication of 75,000 Afghanistan war documents, despite efforts by Schumer and Sen. Dianne Feinstein (D-Calif.) in drafting an amendment to exclude such websites from the pending legislation.
For now, 40 states, along with the District of Columbia, have enacted state reporter shield laws providing a variety of protection. In April, Hawaii legislators were unable to agree on legislation to extend the state’s temporary shield law, which is set to expire at the end of June.
But supporters are hopeful that Congress can come together this time around to enact a federal shield law.
The House and Senate versions of the 2009 bills reintroduced by Rep. Conyers and Sen. Schumer are different and rife with exceptions. Although both provide a qualified privilege to reporters and both would apply in both criminal and civil contexts, the two proposals vary greatly on what information would fall under its purview and who could call on the shield for protections.
When it comes to confidential sources, the House version provides near absolute protection, with exceptions only for breaches of national security, potential imminent death or significant bodily harm, and release of trade secrets. The protection for all work product, both confidential and non-confidential, is subject to a qualified balancing test. A court can compel the production of the material if it’s found to be critical to a criminal investigation or successful to the completion of a civil case.
By contrast, the reintroduced Senate bill specifically states that non-confidential work product is not protected. And in regards to confidential sources, the protection is qualified, with exceptions for criminal or tortuous conduct, the prevention of death, kidnapping or substantial bodily injury, and national security.
Supporters of a federal shield law say the legislation would provide, at the very least, a more transparent process to any compelled disclosure of such information than the secret Department of Justice subpoenas issued to retrieve the Associated Press phone records.
Under the Justice Department’s internal guidelines, attorneys are required to follow a specific procedure when issuing subpoenas to members of the news media. Department personnel is directed to take all reasonable efforts to obtain information from alternative means of investigation before considering issuing a subpoena to the media. The department is also required, under the guidelines, to negotiate with media organizations in advance of issuing the subpoenas unless doing so would pose a substantial threat to the integrity of the investigation.
In criminal cases, there should be reasonable grounds under the department guidelines to believe a federal crime has occurred and the information sought is essential to the investigation. And the subpoena must be narrowly drawn and directed at the relevant information regarding a limited subject matter and covering a reasonably limited time period.
“The AP case really shows that the Department of Justice voluntary guidelines really don’t work,” said Paul Boyle, the senior vice president of public policy at the Newspaper Association of America, which has lobbied heavily in favor of a federal shield law. “This case was a fishing expedition to discourage leaking, and it has the impact to chill communication between government and the press. And it’s the public that ends up suffering.”
Federal anti-SLAPP efforts
Just as with the reporter’s privilege, a patchwork of state laws provide varying degrees of protection allowing targets of meritless libel suits to quickly dispose of cases. Twenty-eight states and the District of Columbia have enacted such laws, but the scope of the protected activity varies widely from state to state. Generally, the laws give SLAPP defendants the ability to ask the court to dismiss claims infringing on petition or free-speech rights.
In December 2009, Rep. Steve Cohen (D-Tenn.), introduced The Citizen Participation Act of 2009. Under the proposed law, individuals engaging in petition activity — defined as statements made before or submitted to a legislative, executive or judicial proceeding or activity encouraging others to make or submit such statements – without knowledge of or reckless disregard for the falsity of any statements they make – are immune from liability.
Moreover, the act protects statements made in a place open to the public or a public forum in connection with an issue of public interest. Such statements include any information or opinions related to health or safety, environmental, economic or community well-being, the government, a public figure or a good, product or service in the marketplace.
Under the federal anti-SLAPP bill, a defendant who is sued in state court and who believes he is immune from liability under the measure or entitled to its protections may remove the case from state court to the federal trial court in that area.
This removal provision is especially important in light of several recent cases which call into question whether state anti-SLAPP laws can be applied in federal court cases.
In April, Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit argued in a concurring opinion filed in Makaeff v. Trump University that the appeals court made a “big mistake” by ruling 14 years ago that California’s state anti-SLAPP law should apply to cases in federal court. He urged the entire Ninth Circuit to reconsider the issue and confine the anti-SLAPP law to litigation in state court.
“Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations,” Kozinski said of the appeals court’s 1999 decision in Newsham v. Lockheed Missiles and Space Co., in which the court held that sections of California’s anti-SLAPP statute do not conflict directly with the Federal Rules of Civil Procedure and thus are applicable in federal diversity actions.
Kozinski said in his concurring opinion that while the Ninth Circuit is bound by its decision in Newsham, “if this or another case were taken en banc, we could take a fresh look at the question. I believe we should.”
Judge Rosemary Collyer for the U.S. District Court in Washington, D.C., however, found no problem in applying the D.C. Anti-SLAPP Act in a defamation suit concerning a blog item written by Esquire Magazine which made satirical comments about a book questioning whether President Barack Obama was a natural-born citizen.
A May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, “Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President”, pull copies from bookstore shelves and refund the purchase price to customers after the release of Obama’s long-form birth certificate.
Judge Collyer held that because “[i]t was certainly the intent of the D.C. Council and the effect of the law — dismissal on the merits — to have substantive consequences,” the statute applied in federal court.
The case has been appealed to the U.S. Court of Appeals for the District of Columbia Circuit, the same court which is hearing the appeal of Sherrod v. Breitbart.
In 2011, former federal agricultural official Shirley Sherrod filed a defamation suit against now-deceased conservative blogger Andrew Breitbart. Lawyers for Breitbart filed a motion to dismiss the suit under the D.C. Anti-SLAPP Act, which a federal judge denied. The judge, in rejecting the application of the D.C. Anti-SLAPP Act, noted that the law did not take effect until one month after Sherrod filed the defamation suit against Breitbart.
Breitbart appealed the district court ruling to the U.S. Court of Appeals for the D.C. Circuit. In March 2013, the appeals court heard oral arguments on whether the D.C. law can be applied in federal court.
Proponents of a federal anti-SLAPP law point to such discrepancies in the lower courts as a reason why legislation is needed.
“If federal anti-SLAPP legislation were enacted, there would be no confusion about whether or not a state anti-SLAPP law is procedural or substantive,” said Evan Mascagni of the Public Participation Project, a Berkeley, Calif.-based lobbying group pushing for a federal anti-SLAPP law. “And, thus, whether or not it should apply in federal court.”