Fighting subpoenas

From the Summer 2006 issue of The News Media & The Law, page 10.

If — and most likely when — San Francisco Chronicle journalists Mark Fainaru-Wada and Lance Williams appear in a courtroom, their top priority will be convincing a federal judge of the importance of confidential sources.

Federal prosecutors subpoenaed the reporters in an attempt to discover who leaked secret grand jury testimony. The testimony appeared as a source for articles in the Chronicle by Fainaru-Wada and Williams about an investigation into the Bay Area Laboratory Cooperative (BALCO), which allegedly supplied steroids to Barry Bonds and other baseball players and athletes. Both reporters steadfastly maintain that they will not reveal their source to whom they promised confidentiality.

Since there is no federal shield law protecting journalists from revealing their confidential sources, the reporters and their lawyers will instead have to convince the court of the importance of confidential sources. The Ninth Circuit, which covers the federal court in San Francisco, applies a balancing test that weighs the need for the disclosure against First Amendment considerations.

Under such a test, one of the most difficult aspects for a media lawyer representing a journalist facing a subpoena is how to convince the court of the importance of confidential sources — or how forcing the journalist to reveal a source greatly burdens the reporter.

"Every time people make this argument it gets a little better," said David Schulz, also of Levine, Sullivan Koch & Schulz in New York. "People build on the things done before."

One of the best strategies used to help convince a court of the importance of confidential sources has been journalist testimonials, said James Goodale, a retired partner at Debevoise & Plimpton.

"The best way is from affidavits from reporters telling true-life stories which indicate that the true-life story would not have been published had it not been for the ability to protect the source," Goodale said. "The best example I can think of is that current Hearst litigation in California where Carl Bernstein put in an affidavit which did exactly that. It said effectively that Watergate couldn't have happened, the story couldn't have been published unless the ability was there to protect sources. It's 30 years ago but still relevant." Bernstein is the former Washington Post reporter who helped break the Watergate story with Bob Woodward.

In fighting the subpoenas, Hearst's motion to quash contained 15 affidavits, including some from reporters. Fainaru-Wada and Williams were joined by Carl Bernstein and Jack Nelson, a former Los Angeles Times reporter and editor, in filing affidavits supporting the protection of confidentiality.

Bernstein wrote that without the ability of reporters to protect confidential sources, Deep Throat, their top source for uncovering the Watergate scandal and identified decades later as Mark Felt, former assistant director of the FBI, would not have come forward.

"Stated differently," Bernstein wrote in his affidavit, "almost all of the articles I co-authored with Mr. Woodward on Watergate could not have been reported or published without the assistance of our confidential sources and without the ability to grant them anonymity, including the individual known as Deep Throat."

Media lawyers hope specific examples such as Bernstein's can show the importance of confidentiality more than a summary of legal analysis. It also helps to have some star power.

"It's good to have names the judge will recognize, people who have credibility, who have been around for awhile, who are not viewed as being biased or too much on the extremes," said George Freeman, counsel for The New York Times. "The most important thing is if they can give examples."

Hearst found others, including a few from unlikely sources, who support protecting the journalists' sources. Mark Corallo, former press secretary to Attorney General John Ashcroft, filed an affidavit stating that the government had overreached its authority.

"I would not have approved the issuance of subpoenas," Corallo wrote in his affidavit, "and based on my experience, I do not believe they would have been issued under former Attorney General Ashcroft's administration. In this case, there is no danger to life or issue of grave national security."

Jamie Gorelick, former deputy attorney general under Attorney General Janet Reno, also filed a similar affidavit.

Freeman said an affidavit from a journalist "helps to put the issue in a context where the court can understand that we need anonymous sources not so much to give the generally accepted view, but rather we need an agreement of anonymity for those who are gong to criticize the powerful to be able to speak and have their place in the news report — they're the ones who need protection."

That tactic worked at the trial court in New York Times Co. v. Gonzalez, in which the Times sued the government to prevent the Justice Department from searching the telephone records of reporters Judith Miller and Philip Shenon. Although overturned on appeal on Aug. 1, U.S. District Court Judge Robert W. Sweet in Manhattan ruled that a qualified First Amendment privilege protected the reporters from compelled disclosure. In doing so, Sweet positively cited several affidavits provided by the media.

Sweet quoted one by Jeffrey Smith, a former CIA general counsel, who argued that "federal agencies benefit from the ability to have officials speak confidentially, although in an authorized manner, with the news media."

Sweet also quoted historian Anna Nelson's affidavit, which stated how the My Lai massacre in Vietnam would not have been discovered without anonymous sources. Because the "journalist was able to keep his sources confidential . . . historians have deepened their view of the way in which the war in Vietnam was fought," she said.

Affidavits such as those can work because they give the court additional information in an area of law most judges have little experience in.

"It's important to educate the court as to how things work in your industry," said Susan Buckley of Cahill Gordon & Reindel in New York. "Judges, because they're lawyers, know the importance of the attorney-client privilege and why it's protected throughout the country. They don't have the same kind of experience with why journalists' privileges are necessary."

Once judges understand the importance of the issue, media lawyers hope a judge will then provide additional protection for confidentiality.

"The affidavits give the policy reason why the privilege is so important," Freeman said. "A lawyer can do that in a brief but it certainly is better if it's evidence that's submitted by a journalist who really experienced it rather than a lawyer giving his theories. If the affidavit has personal examples that really make a point and really hit hard, then that's really helpful."

Unfortunately, affidavits are not a silver bullet for protecting confidentiality. While they were originally successful in Gonzalez, many other media lawyers have recently — despite the affidavits — seen decisions weakening a reporter's protection of confidentiality.

In the widely reported Miller case last year, Miller, Time reporter Matthew Cooper and at least six other reporters were subpoenaed regarding the outing of CIA agent Valerie Plame. The attorneys in the Lee case also used affidavits. Yet in both cases, the reporters were ordered to testify.

"Part of the problem is picking our fights," Schulz said. "I think the fights we've lost have been very difficult ones for the press because the arguments on the other side about the need for the information have been very compelling. In the Valerie Plame investigation, there's national security overtones and the disclosure of a CIA operative which people instinctively understand is an important issue.

"Now we're looking at BALCO where they're trying to get information of a leak on a grand jury subpoena in a case where the criminal prosecutions are done and over and the investigation is completed. All they're doing now is seeking retribution to figure out where the leak came from. It's a better field on which to fight the fight."