From the Spring 2005 issue of The News Media & The Law, page 1.
For the last several months, the staff of the Reporters Committee for Freedom of the Press has been preparing to celebrate its 35th Anniversary. The planning has included many hours going through dusty, broken file cabinets, old boxes and archived records.
What is striking about this effort can probably best be described in the words of Yogi Berra: It's deja vu all over again.
Once again, the Reporters Committee is at the forefront of the fight over the issue that led to the Committee's creation in 1970: subpoenas ordering reporters to reveal confidential sources.
In his new book, "Speaking Freely," First Amendment attorney Floyd Abrams describes the prevailing atmosphere during the early days of the Nixon administration. In the two-and-a-half-year period from 1969 through July 1971, NBC and CBS received 122 subpoenas, many of them requiring the identity of confidential sources. Abrams points out that as the volume and intrusiveness of subpoenas increased, so did the willingness of the press to resist them.
Responding to such a wave of subpoenas across the country — including one aimed at New York Times reporter Earl Caldwell — a group of journalists met in Washington, D.C., on a Sunday afternoon in April 1970 to discuss ways of fighting back. Thus, the Reporters Committee began. Although it was run on a shoestring (and still is), it gradually won the support of foundations and news organizations. Over the years, the committee has become the "go-to" organization for reporters and lawyers in need of legal assistance, last year aiding more than 2,000 journalists and attorneys through its legal defense hotline and responding to emailed inquiries. With a 13-person staff including six lawyers, the Committee also produces its quarterly magazine The News Media & the Law and many other publications and surveys.
When I took this job a little more than five years ago, the issue of subpoenas that demanded the identity of confidential sources was on the back burner. Every once in a while, we'd hear from a concerned reporter who was being asked to reveal a source in a criminal or civil proceeding.
After the notorious Branzburg v. Hayes decision in 1972, many states passed shield laws providing a privilege of some sort to reporters. Today, 31 states and the District of Columbia have shield laws and all other states except one (Wyoming) provide for a privilege via common law. In the federal courts, prosecutors have been somewhat restrained in subpoenaing reporters over most of the last 30 years. And some federal judges had been persuaded that the First Amendment provides some level of protection for confidential sources.
But the last two years have been sobering. We know of about 30 federal court subpoenas pending on journalists and newsrooms just over the last year. We support the reporters resisting subpoenas in the Valerie Plame investigation and the Wen Ho Lee case, and applaud Rhode Island TV reporter Jim Taricani for his courage during his recent house arrest.
There is no question that federal prosecutors and litigators feel empowered by recent court decisions upholding media subpoenas. So, it's deja vu all over again.
For the last 35 years, The Reporters Committee has provided leadership and guidance to reporters who strongly believe that a free press is a cornerstone of democracy. We hope our reputation for being available around the clock to provide immediate legal assistance to any working reporter, anywhere in the United States, without charge, is a source of pride to the reporters who met at Georgetown University that Sunday in 1970.
We're celebrating an important birthday, but we're reminded every day that we have lots of work to do. High on our agenda is pushing for a federal shield law, which has been introduced in both houses of Congress. Hopefully, it won't take another 35 years for the federal government to officially recognize the need to provide a privilege for journalists to shield confidential sources.
Every day American journalists still face libel suits, subpoenas, court closures, arrests, prior restraints and sealed government documents. In many cases, they will have nowhere to turn but the Reporters Committee. We're determined that the Reporters Committee will be there for them for many years to come.