From the Summer 2005 issue of The News Media & The Law, page 54.
The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.
The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.
Q: Several members of the Senate Judiciary Committee suggested in a July hearing on a proposed federal shield law that the reporters privilege should not apply when a source is engaged in apparently illegal behavior. Should it apply in such an instance?
A: The Reporters Committee believes that if the privilege does not apply in some situations, it is impossible for journalists to know when they can and cannot promise confidentiality. For more perspective on this issue, we turned to three attorneys who handle subpoena controversies for journalists.
Lee Levine, Levine Sullivan Koch & Schulz, Washington, D.C.:
As I testified before the Senate Judiciary Committee in July, a source’s allegedly illegal conduct cannot be the linchpin on which the availability of the reporters’ privilege turns. For one thing, American history is replete with examples of important journalism that was made possible only because sources who arguably violated the law by doing so provided information about vital public issues to a reporter in confidence.
In a friend-of-the-court brief our firm recently submitted to the Supreme Court (on behalf of the Reporters Committee and several media companies) in support of Matt Cooper and Judy Miller, we pointed to countless such examples, from the Pentagon Papers and Watergate, to the Enron scandal and the BALCO investigation.
In addition, at the point in their discussions when a reporter promises confidentiality to a source, it is typically not possible to know whether the information that will thereafter be provided by the source is communicated in violation of the law.
And, finally, many legal obligations are so vague and undefined — such as those relied upon by Dr. Wen Ho Lee and Dr. Steven Hatfill in their Privacy Act suits against the federal government — that an “illegal behavior” exception to the privilege arguably includes virtually all information about identifiable persons provided to journalists by confidential sources in the Executive Branch.
In the last analysis, therefore, an “illegal behavior” exception would create so much uncertainty that neither reporter nor source would be able to rely on the law’s putative protection from compelled disclosure in a broad range of cases.
Eve Burton, Vice President and General Counsel, The Hearst Corporation:
Yes. The overriding purpose of a federal shield law (following the legal lead of 32 states which have shield laws) is to facilitate the work of journalists and the free flow of information to the U.S. public. Whistleblowers who leak or report wrongdoing by government officials or disclose corruption in publicly funded programs are almost always going to be committing an illegal act by exposing the wrong doing. Consider the acts of Deep Throat.
Likewise, some information that “leaks” from the grand jury in ways that show our baseball heroes take performance enhancement drugs, even as they tell the public otherwise, may involve an illegal act by a source. Few would refute the public importance of the Watergate or BALCO stories. A federal shield law that protects whistleblowers that break the law is not a perfect solution, nor is democracy for that matter. But it is better than the corrosive effect of the alternative, which is that important stories remain untold and government becomes less accountable. Will there be some misuses? Yes, but again, the benefits of more transparent government particularly outweigh the costs to society of hidden corruption.
Jonathan M. Albano, Bingham McCutchen LLP, Boston, MA:
The short answer is yes, the privilege should apply even if a source is engaged in “apparently illegal” behavior. But the question highlights one of the difficulties in gaining support for an absolute privilege.
When it comes to a qualified privilege — the type recognized by most courts — the fact that a source is engaged in apparently illegal behavior should be just one of several factors considered by a court deciding whether to protect the source’s identity. For example, how clear is it that a crime was in fact committed? Was it a felony or a misdemeanor? Is the prosecution a legitimate exercise in law enforcement or is it an attempt to make a political point or exact revenge for embarrassing — but accurate — disclosures? Does the value of prosecuting the crime outweigh the value to society of the information provided by confidential sources? And why are the authorities unable to pursue their case without forcing a reporter to testify? Considering all of these factors might lead a court to rule that a reporter has a right to protect a confidential source even if “apparently illegal” behavior is involved, particularly if the source provided accurate information about a matter of legitimate public concern, a core First Amendment communication.
If we are talking about an absolute privilege, then the argument gets more complicated. To be sure, our society recognizes certain privileges that effectively shield wrongdoers — the attorney-client privilege, the psychotherapist privilege and the priest-penitent privilege (depending on the jurisdiction you are in) all operate in a way that sometimes allows a witness to refuse to answer a question that calls for information about whether someone has admitted to a crime. And when prosecutors rely on confidential informers, they have the option of dropping the case rather than disclosing the informer’s identity, a decision that places protecting the identity of the informer/source over prosecuting the case. The same notion underlies proposals for an absolute reporter’s privilege. The problem with an absolute privilege, however, is the same as its benefit — it applies absolutely, in every situation, protecting the identities of whistle blowers and terrorists alike. That is a tough sell in any environment, but particularly in the post-9/11 era.
Q: A district court is considering passing a local rule that would bar parties, attorneys and court employees from publicly discussing any aspect of a pending case that is not part of the public record. Doesn’t this violate the First Amendment?
A: A rule so sweeping would vioalte the First Amendment. While certain rules, such as the Federal Rules of Civil Procedure, are used uniformly in all federal courts, individual U.S. district courts can also pass their own rules, called “local rules,” that are unique to that jurisdiction. Since these rules can vary greatly from court to court, some courts are much more restrictive on the flow of information than others. The Northern District of Florida in Tallahassee, for example, prohibits public disclosure of information that is outside the public record. A dispute over this rule recently prompted U.S. Attorney Greg Miller to quit collaborating with Escambia Sheriff Ron McNesby, who Miller claimed repeatedly violated the rule by divulging too much information to the public, The Associated Press reported.
A gag order must be narrowly tailored in order to survive First Amendment scrutiny. Before issuing a gag order, a court has to balance the speaker’s First Amendment right of free speech against whatever other interests are at stake (often, a defendant’s right to a fair trial.) The U.S. Supreme Court held in the 1991 case Gentile v. State Bar of Nevada that courts can gag an attorney’s out-of-court statements only if such speech creates a “substantial likelihood” of prejudice to a fair trial. Some federal courts follow an even more stringent test, requiring proof of a “clear and present danger” or a “serious and imminent threat” of prejudicing a fair trial before they will gag trial participants.