From the Summer 2005 issue of The News Media & The Law, page 9.
New York and Washington, D.C., are among about 13 jurisdictions with shield laws granting reporters an absolute privilege from having to identify their confidential sources in most situations. So why were reporters Matthew Cooper of Time magazine’s Washington bureau and Judith Miller of The New York Times not absolutely protected from subpoenas to testify about their confidential sources?
The shield laws did Miller and Cooper no good because as state law, they apply only in the state courts, not the federal courts where the journalists were subpoenaed.
There is no federal reporter’s shield law, although bills to create one are before both houses of Congress. The status of a constitutional or common law reporter’s shield in the federal courts is currently in chaos, and has been since the U.S. Supreme Court’s split 1972 decision in Branzburg v. Hayes, in which the majority ruled that reporters do not have a privilege from testifying before grand juries. To make matters more tenuous, U.S. Justice Department guidelines for when federal prosecutors may subpoena journalists are not binding in the courts.
When reporters promise confidentiality to sources, they have no way of knowing that the discussion could later become the source of civil litigation or a criminal investigation, much less whether it could wind up in any particular state or federal court. Even matters governed entirely by state law might end up in federal court in many situations, making it impossible to know how much protection a reporter has at the time a promise of confidentiality is made, even in a state with an absolute shield law.
“The rules of the road as I try to do my job as a reporter are chaotic at best,” Cooper told the Senate Judiciary Committee during a July 20 hearing on the proposed federal shield law. “Right now, if I pick up the phone and call a senator or his or her staff or a civil servant and they say, ‘Don’t quote me on this, but . . . ‘ or ‘Don’t identify me but . . .’ I can’t really know what I’m getting myself into assuming what follows is important and controversial enough to rise to the level of litigation. . . . As a working journalist, I’d like to know better what promises I can legally make and which ones I can’t.” — GP