Finding optimism about press freedoms … south of the border

From the Fall 2003 issue of The News Media & The Law, page 1.

I'm one of those geeky Americans whose favorite Washington, D.C., tourist stop is the National Archives, and I get irritated when the teaming masses push me past the display cases while I'm trying to read the entire U.S. Constitution, Bill of Rights and Declaration of Independence.

As I traveled the country the past two years to explain to Americans why they should be concerned about not getting as much public information as they did before Sept. 11, 2001, I often warded off frustration by thinking of the optimism reflected in those documents. But it's been hard to stay optimistic.

On a recent trip to Mexico to address a convention of Mexican newspaper editors, I was immediately struck by their optimism. Unlike U.S. editors, who have had more and more freedom of information act requests refused, reporters subpoenaed and courtrooms closed in the last two years, Mexicans in recent months have gained unprecedented access to their government.

Mexican journalist Dolia Estevez, who works out of Washington, D.C., for her nation's largest financial newspaper, El Financiero, says a new freedom of information law that went into effect in Mexico over the summer "is the most significant thing (President Vicente) Fox has done. For the first time ever, reporters can get the salaries of public officials and find out the costs of the president's trips," Estevez said.

Mexican journalists are so buoyed by their success in getting a nationwide FOI law, they've immediately started tackling what they view as their next biggest problem: the lack of a law protecting journalists' rights to keep sources confidential. They are advocating a national shield law that protects sources.

The Association of Mexican Editors is a relatively new group. Mexico's Attorney General, Rafael Macedo de la Concha, was the keynote speaker at the recent convention, and lauded the nation's new FOI law. Macedo pointed out that there is decreased corruption in countries with FOI laws, and increased government efficiency when there is greater public oversight. But Macedo said the reporter's privilege issue is "on a very bumpy road."

The Mexican editors invited me to speak about reporters privilege laws in the United States. They were under the mistaken impression that journalists have an easy time in the U.S. protecting their sources. Ironically, only two days earlier, a U.S. district court judge in Washington, D.C., ordered five journalists from four news organizations to identify their secret sources for stories about former nuclear weapons scientist Wen Ho Lee. In the past 18 months, reporters have been unable to protect their sources and information in the 5th, 7th and D.C. U.S. Circuit Courts of Appeal, as well as in Minnesota. Not since the Nixon Administration has there been such a threat to the right of journalists to protect their sources.

As Kirsten Murphy's story on page 15 points out, most federal circuit courts recognize some form of a reporter's privilege, stemming from the U.S. Supreme Court's 1972 splintered decision in Branzburg v. Hayes. In that case, which also led to the formation of The Reporters Committee for Freedom of the Press, the Court narrowly decided against providing reporters the privilege of refusing to respond when called to testify before grand juries conducting criminal investigations.

However, the 5-4 decision depended on the vote of Justice Lewis Powell, who sided with the majority while writing his own concurrence favoring a case-by-case privilege. Powell envisioned a judiciary that struck "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony."

Since Branzburg, we have been left with a patchwork quilt of reporter's privilege protections that vary from state to state and federal circuit to federal circuit. When the Reporters Committee earlier this year published a compendium of guidelines to reporter's privilege laws nationwide, we called upon lawyers from 63 jurisdictions to help us out.

By comparison, the Mexican proposal for one nationwide law shielding sources seems amazingly simple. We'll be watching it closely.

— Lucy Dalglish