A reporter’s privilege in tatters

From the Fall 2008 issue of The News Media & The Law, page 15.

From The New York Times to independent blogs to small-town newspapers, news organizations nationwide are increasingly finding themselves threatened with subpoenas for confidential sources and information.

Just in the past eight years, the number of federal court subpoenas sent to reporters has jumped. A few journalists have been jailed, others have been slapped with exorbitant contempt fines, and many more have slogged through the expensive and time-consuming legal process of fighting back.

Beyond their burden lies the fear that the judiciary’s heightened inclination to demand confidential information from reporters will prove damning to journalism, as sources shut down. And though there’s been a push to enact a federal shield law to protect just that from happening, the administration has been vocal in its opposition.

In the eyes of many First Amendment advocates, President Bush has wreaked havoc on the reporter’s privilege during his tenure.

“In a democracy, you have to recognize the role of the press,” New York Times reporter James Risen said. “I don’t think [the administration] wanted to. All presidents are going to get angry about leaks. But they have to recognize the role of press in society, and that is something the Bush people don’t recognize.”

Risen fell headlong into the administration’s path in February when he received a federal grand jury subpoena seeking the confidential sources he had used for his 2006 book “State of War,” about the CIA. He is still fighting it; the case is under seal. Meanwhile, not to be stalled by that battle, the government obtained Risen’s phone records and questioned government officials about them during a federal grand jury proceeding in Alexandria. Risen and The New York Times do not know how the government obtained the phone records, nor do they know the purpose of the grand jury investigation in which they were used. Government officials have refused to discuss details of the grand jury investigation.

“They want to intimidate the press to not cover things and to not be aggressive,” Risen added. “They want to intimidate the officials to not talk.”

Weakening the reporter’s privilege

Ever since the 1970s, most federal courts have recognized that reporters should have some type of qualified privilege protecting them against having to reveal their confidential sources. The Supreme Court’s 1972 decision in Branzburg v. Hayes, a consolidated case in which three reporters were subpoenaed to testify before three separate grand juries, set the tone for the next three decades.

The Court’s opinion in Branzburg was murky on the question of a reporter’s privilege. But in the years following Branzburg, federal courts across the nation interpreted the case to give rise to a qualified privilege that typically balanced the reporter’s right to protect the sources against the government’s need for the information.

Courts often found that the public’s interest in keeping sources confidential outweighed any governmental need for the information. But in the last decade, that privilege has slowly been chipped away.

“There’s no question that this has not been a press-friendly administration and that the Justice Department has been increasingly aggressive,” Ken Paulson, executive editor of USA Today, said in an interview. “But the bottom line is that we’re losing ground because many federal judges are no longer as supportive of core free press principles.”

Paulson said his newsroom hasn’t seen an increase in subpoenas, but what he has noticed is that more reporters who are called to testify end up held in contempt. He blames the courts more than the administration. The Justice Department itself has issued fewer than half of the subpoenas served on the press in the last eight years.

One of the first in the string of recent high-profile cases in which reporters were punished over their promises of confidentiality involved a Rhode Island television reporter, Jim Taricani. He was sentenced by a federal judge to six months on house arrest after he refused to reveal the source of a leaked FBI videotape showing a Providence official taking a bribe from a government informant.

Not long after that, in 2003, the world first heard the name Valerie Plame. Her identity as a CIA operative was revealed to columnist Robert Novak, who then included the tidbit in an article; the Department of Justice promptly appointed a special prosecutor to investigate whether her name had been leaked illegally.

And so began a legal saga that would take years to resolve. Subpoenas were sent out to a number of reporters, including Tim Russert from NBC, Matthew Cooper of Time Magazine, Walter Pincus of The Washington Post and Judith Miller of The New York Times. The first three ultimately testified, once they had received waivers from their confidential sources. But Miller spent more than 12 weeks in jail before she received a satisfactory waiver from her source, the vice president’s chief of staff, I. Lewis “Scooter” Libby. Libby was convicted in 2007 of perjury and obstruction of justice; President Bush commuted his prison sentence.

A shield in the era of terrorism

In a reflection of one of the defining issues of the Bush administration, many of the high-profile battles waged in recent years over reporter’s privilege were embedded in the context of terrorism.

When John Walker Lindh, an American Taliban fighter, was charged with terrorism in 2002, federal prosecutors wanted to use a videotaped interview Lindh did with CNN freelancer Robert Pelton. The judge ordered Pelton to testify, but in the end he did not have to take the stand because Lindh pled guilty.

Likewise in 2004, when Lynne Stewart, a New York-based defense attorney, went on trial for allegedly helping her client Sheik Omar Abdel-Rahman communicate with terrorist followers, federal prosecutors subpoenaed reporters from The New York Times, Reuters and Newsday. Reuters reporter Esmat Salaheddin was the only one ordered to testify before the case concluded.

Even on the civil side, the post-Sept. 11 political atmosphere was infused into a slew of lawsuits stemming from botched investigations by the Department of Justice each of which, while not necessarily targeting reporters, swept many of them into court with subpoenas.

Nuclear physicist Wen Ho Lee used the Privacy Act, a federal law originally intended to bar the release of personal information from a government database, when he sued the government under the Act claiming his name was wrongly disseminated to the press when he was under investigation for espionage. He subpoenaed several reporters; battles over their testimony lingered until 2006 when the case settled, with ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Postagreeing together to pay Lee $750,000.

Next was Steven Hatfill, whose onetime status as a “person of interest” in the federal inquiry into the deadly 2001 anthrax attacks was leaked to the press. He, too, sued the government under the Privacy Act, and subpoenaed a dozen reporters. Judge Reggie B. Walton in August 2007 compelled six reporters to testify. Former USA Today reporter Toni Locy was held in contempt and threatened with fines that she said would have bankrupted her retirement fund; Walton said he would bar her from accepting financial help from the newspaper.

Hatfill, too, has settled his case, and his name has been cleared. But as of October, Locy was still battling the contempt issue in court.

Finally, in Detroit, Free Press reporter David Ashenfelter was recently ordered to testify in yet another Privacy Act lawsuit over his coverage of a misconduct investigation into former U.S. Attorney Richard Convertino. Ashenfelter is currently fighting his case.

Local reporters affected too

It’s not just reporters covering terrorism beats who are feeling the chill. Reporters covering a variety of topics, for a variety of news organizations, have seen an increase in subpoenas, according to RonNell Andersen Jones, a media law professor at Brigham Young University who recently finished a study surveying the subpoenas sent to newsrooms nationwide.

The number of subpoenas, both federal and state, has increased, she said. And most have little to do with national security or the Privacy Act rather, they stem from cases involving immigration, civil rights, employment matters, and drug crimes.

“[Subpoenas were reported in] every circulation and every market size,” Jones said. “It’s not the case that only the big league players on the coast are having this happen. It’s occurring at very small newspapers and TV operations all across the country.”

One of those local reporters became big news when he spent 226 days in jail. Freelance blogger Josh Wolf earned the distinction of being the longest-jailed American journalist after a videotape he made of a 2005 anarchist rally in San Francisco piqued the interest of a grand jury. After seeing portions of Wolf’s video on local television, federal prosecutors wanted the unaired footage because they thought it contained video of a police car being set on fire a federal crime they wanted to investigate.

Wolf was held in contempt after he refused to turn over footage to federal officials. He spent 226 days after he adamantly refused to turn over the footage, saying he was bound to protect the confidentiality of the people on the tape.

“It goes against every moral fiber in my body to sit back and out people for their political beliefs,” he told Time during the ordeal.

Another local case that made news involved a drug investigation. The Department of Justice subpoenaed two reporters from the San Jose Mercury News and three from the San Francisco Chronicle in 2005 during an investigation into steroid use in Major League Baseball. The case stemmed from a grand jury investigation into the Bay Area Laboratory Co-operative, known as BALCO, for illegally distributing steroids to baseball players.

In a case that exemplified the government’s attempt to use journalists as an investigatory arm, the Chronicle’s Lance Williams and Mark Fainaru-Wada were held in contempt, but were subsequently cleared when the case ended in a guilty plea by BALCO defense attorney Troy Ellerman. Ellerman admitted in February 2007 that he allowed Fainaru-Wada to take detailed notes of secret transcripts at the same time he was asking for the case against his client to be dismissed because of the leaks. He pled guilty to two counts of contempt of court, one count of obstruction of justice and one count of filing a false declaration with a federal court.

Though these cases made headlines, Jones’ study reveals that reporters at every level have spent time and resources battling an increasing number of subpoenas. Her survey was sent to news television affiliates and daily newspapers across the country.

Jones found that in 2006, the 761 news groups that responded had collectively received 3,062 subpoenas. Some 335 were federal. The actual number is almost certainly much higher, she said, given that it surveys less than half of news organizations nationally and does not include Web sites or magazines.

The Reporters Committee for Freedom of the Press conducted a similar survey in 2001. That study showed that 74 out of 823 reported subpoenas arose in federal court.

The substantial increase in subpoenas issued by both state and federal prosecutors could be evidence of a shift in perception, Jones said.

“There is a sense that the high-profile cases are having a trickle down effect,” she said. “Behavior that was once seen as inappropriate by lawyers across the country is becoming more common. Lawyers now feel more comfortable subpoenaing reporters.”

The Shield Law proposals

Jones launched her study in response to debates that arose over the enactment of a federal shield law, which would for the first time statutorily prohibit federal courts from compelling journalists to testify in most situations.

There are 36 states, plus the District of Columbia, that have state shield laws in place. A total of 49 states all but Wyoming offer reporters some sort of protection. But those laws only cover reporters subpoenaed before a state court. At the federal level, there is no protection for confidential sources written into law.

But state shield laws do little to help convince sources that their anonymity will be protected, Jones said. When a reporter is interviewing a source, the reporter has no way of knowing what type of litigation will arise that may cause the reporter to be slapped with a subpoena. The reporter also can’t know if that litigation would arise in state court, thus allowing the benefit of a state shield law, or in federal court, where the confidential source has little protection. This is an argument Jones heard from many respondents to her survey.

“In the absence of a federal privilege, even a reporter who operates under a state shield law that has an absolute privilege can still make no guarantees to sources at the time in which those guarantees are sought,” Jones said. “People reported to us that there is a concern about the disparity of protection.”

In the wake of the Plame investigation and the Privacy Act cases, though, that almost changed. Several versions of a federal shield law were proposed in the U.S. House and Senate.

At the end of 2007, the Free Flow of Information Act passed in the House by a vote of 398-21. The Senate version of the bill cleared the Senate Judiciary Committee by a vote of 15-2. The Senate bill ultimately died in the final hours before the Senate broke for its September recess; it did not earn floor time when Congress came back to finish the session this fall. The Bush administration has been particularly obstructive. As soon as the House bill passed last fall, the president threatened to veto it.

The Department of Justice was unmoved by the arguments in favor of the shield law, even when a majority of state attorneys general spoke out in favor of it. Justice officials argued that there was no need for a federal shield because the number of subpoenas sent to reporters did not justify legislation.

While media organizations cited the rise in the number of subpoenas sent to reporters, the Department of Justice countered that it had only issued a handful of those. Further, the department said that its guidelines on when and how to issue subpoenas to reporters were sufficient.

National security reared its head often in these debates as well. Many opponents of the shield law argued that terrorism investigation concerns outweighed any right of a reporter to protect sources.

But as Jones’ study shows, the increase and variety in subpoenas makes clear that a federal shield law is needed and would offer protection to numerous reporters, she said.

“It has been one blow after another on the question of privilege for the press in the last five to six years,” she said. “And the sense that people on the ground have is that it has negatively impacted the whole of the legal climate.”

Both presidential candidates, John McCain and Barack Obama, have expressed support for a federal shield law.

“I remain hopeful,” she added. “The change in administration will inevitably improve the state of affairs for journalists on this front, and on this question.”