Would a shield law matter?

Because the proposed federal shield law grants only a qualified privilege and includes national security and eyewitness exceptions, questions remain about how it would help journalists in specific cases.

From the Summer 2006 issue of The News Media & The Law, page 4.

By Casey Murray and Kirsten B. Mitchell

Journalists wanting to honor pledges of confidentiality to their sources or who wish to keep their notebooks out of court face a patchwork of reporter’s privilege law in the nation’s 94 federal courts.

A U.S. Senate bill would change that by creating a qualified shield law for confidential sources and information in all federal courts, regardless of circuit.

“The Free Flow of Information Act of 2006” (S. 2831) is sponsored by Sens. Richard Lugar (R-Ind.), Arlen Specter (R-Penn.), Christopher Dodd (D-Conn.) and Charles Schumer (D-N.Y.).

A House bill with greater protections for journalists sponsored by Rep. Mike Pence (R-Ind.) has not yet had a hearing in the House Judiciary Committee.

(To see copies of both bills, go to the Reporters Committee’s Shields and Subpoenas Web site at www.rcfp.org/shields_and_subpoenas.html, click on “Update on federal shield law efforts” and follow the links.)

The bill is needed, say many media lawyers and journalists.

“Any attempt to legislate the scope of our First Amendment rights is unsettling business,” said David Bodney of Steptoe & Johnson in Phoenix. “It places in sharp relief the conditionality of those rights and invites further tampering. Still, in light of recent court decisions constricting the reporter’s privilege, the ‘Free Flow of Information Act’ is a necessary codification of some very important protections. It represents a substantial improvement over the status quo in most federal courts, though it falls short of the absolute guarantees contained in a number of state shield laws.”

To see what effect the shield law might have, The Reporters Committee for Freedom of the Press asked five media attorneys to look at some well-known privilege cases dating back to the three cases that comprised Branzburg v. Hayes and consider what effect — if any — Congress’ proposed shield bill would have had on them.

“While a federal shield law would be a significant boon to the functioning of a free press, there are some cases that might not have turned out differently even if such a law were to have been in effect,” said Samuel Fifer of Sonnenschein Nath & Rosenthal in Chicago. “This is particularly true with respect to those cases where the underpinning for the request was an assertion that the information requested served a national security interest directly; as well, any case where the reporters’ actions might have figured in the crimes being charged. Nevertheless, the law would fill a significant gap left between the condition where there is no protection at all, on one hand, and the strict interpretation of Branzburg, on the other, limiting only grand jury activity calculated to harass reporters.”

Fifer and the other four lawyers usually reached the same conclusion, albeit for different reasons. Some of the lawyers do not have much hope that the shield law — even if it passes — would make enough of a difference.

“I am not very optimistic that the proposed statute would change many decisions,” said Bernie Rhodes of Lathrop & Gage in Kansas City, Mo. “Instead, I am concerned that there is an overarching belief that the media is evil, that government is good, and that in a battle between the two, government will win virtually every time. I believe this view is the bigger problem facing the press in today’s environment.”

Paul Branzburg

Facts: Louisville Courier-Journal reporter Paul Branzburg was held in contempt for refusing to testify to a grand jury about the identity of two people, whom he wrote about in November 1969 after observing them illegally making hashish from marijuana. He was again held in contempt after refusing to identify to a grand jury the names of people he observed smoking marijuana, as he reported in January 1971.

Court ruling: In both cases, the Kentucky Court of Appeals ruled that the state’s qualified reporter’s privilege did not allow a journalist to refuse to testify about events he had observed personally, including the identities of those observed. The U.S. Supreme Court agreed in 1972 in Branzburg v. Hayes. Justice Byron White wrote for the majority: “We are asked to create another [privilege] by interpreting the First Amendment to grant a newsman testimonial privilege that other citizens do not enjoy. This we decline to do.”

Outcome for journalist: Branzburg never paid a fine or went to jail because the case dragged on.

Comments:

• Thomas Kelley, Faegre & Benson (Denver): “It gives all of the subpoenaed journalists in these cases new life, with the possible exception of Branzberg, because his article shows exactly what crime occurred and what information he had to prove it up. I do not think any court is prepared to minimize the importance of enforcing the drug laws. Branzburg, unfortunately, spelled out the crimes and the evidence in his articles.”

• Bernie Rhodes, Lathrop & Gage (Kansas City, Mo.): “The easy answer is that the proposed statute creates protection only in federal prosecutions; therefore, Branzburg could not rely on it. Furthermore, under Section 7 [which provides an exception to the privilege for a journalist’s eyewitness observation or participation in a crime], the same result would nevertheless apply because Branzburg was an eyewitness to the illegal drug use. Same result.”

• Paul Smith, Jenner & Block (Washington D.C.): “Since he was an eyewitness to crime, this case would be governed by Section 7. Under that section the only limitation on the government’s right to demand disclosure is the requirement that the government have exhausted reasonable efforts to get the information elsewhere. In all likelihood, such a showing could have been made and testimony would have been required.”

Earl Caldwell

Facts: Earl Caldwell, a New York Times reporter covering the Black Panther Party in the early 1970s, was subpoenaed to testify before a federal grand jury and bring with him notes and tapes of interviews about weapons shipments to party members in California. He was found in contempt when he refused to testify in 1970.

Court ruling: The U.S. Court of Appeals in San Francisco (9th Cir.) overturned the lower court’s contempt ruling in 1970 and recognized a qualified reporter’s privilege absent a “compelling and overriding national interest.” The U.S. Supreme Court split 5-4 in 1972’s Branzburg v. Hayes — Caldwell’s case was one of three consolidated before the high court — but in a dissent, Justice William O. Douglas wrote: “His immunity in my view is . . . quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier.”

Outcome for journalist: Caldwell never paid a fine nor went to jail.

Comments:

• Kelley: “With Caldwell, it’s not clear what crimes he saw. After hearing him talk at a retrospective on Branzburg, I have to wonder, with the gun-running and that type of thing going on, if he didn’t see and write about some crimes. As I read this [proposed] law, they can use what you write about to establish their foundation, they just can’t use [your] confidential information to establish their foundation. It creates an unfortunate irony, the more you write the weaker your position will be under the shield law.”

• Rhodes: “[T]he real question–and the ultimate question under the proposed shield law — is how the court would resolve the balancing test. I would therefore call it a toss-up. I think this case would truly depend on who your judge was. A ‘law and order’ judge intent on ridding the community of the Black Panthers would easily find compliance with Section 4(b)(4) [which provides a test for the disclosure of information to a U.S. attorney — the test balances whether the nondisclosure would be contrary to the public interest by taking into account the public interest in compelling disclosure against the public interest in newsgathering.] On the other hand, a ‘liberal’ judge would find the government’s case too speculative. In this case, my view is that a ‘tie’ goes to the actual winner in the original case, so I am going to say the same result would apply.

• Smith: “The information sought here was notes and tapes of interviews about criminal conduct. Under Section 4 [compelled disclosure at the request of a U.S. attorney] of the [proposed] shield law, the government would have had to show that it had exhausted other sources, that there was an independent reason to believe a crime had occurred and that the evidence sought was critical to proving it. The court would then have weighed the competing interests in punishing crime and protecting the free flow of information. Given that the testimony related to a serious violence-related crime, it seems likely that many courts would draw the balance in favor of compelling disclosure. Indeed, since the evidence involved shipment of weapons, it could be argued that the case falls within the exception to the privilege in Section 8, involving cases where information is needed to prevent death or bodily injuries.”

Paul Pappas

Facts: Television journalist Paul Pappas spent three hours inside Black Panthers headquarters in New Bedford, Mass., in July 1970 on the condition that he would not report anything he saw or heard except for an anticipated police raid, which never happened. Pappas, who never broadcast a story, was subpoenaed to testify before a grand jury investigating civil disorder. Pappas testified but refused to answer any questions about what had taken place inside the Black Panthers headquarters.

Court ruling: Pappas’ motion to quash on First Amendment and other grounds was denied. In 1971, the Supreme Judicial Court of Massachusetts affirmed the lower court’s denial. The U.S. Supreme Court agreed the following year in Branzburg v. Hayes, with which Pappas’ case had been consolidated. Justice Byron White wrote that the court “cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”

Outcome for journalist: Pappas never paid a fine or went to jail.

Comments:

• Kelley: “Pappas, who didn’t apparently write anything showing he was an eyewitness to some serious crime, stands an excellent chance of winning where he didn’t win before.”

• Rhodes: “I start with the somewhat confusing Section (4)(b)(2), which provides that ‘to the extent possible’ compelled disclosures should be ‘limited to the verification of published information.’ Here, in Pappas there is no “published information.” Moreover, there does not appear to be any compelling information obtained during the time he spent in the building and he therefore should win under Section 4(b)(4). Finally, there is no suggestion that he had evidence of a specific crime under Section 4(b)(5), which requires the government to have reasonable grounds from alternate sources to believe that a crime has occurred.

• Smith: “To the extent he was being asked about events he observed in the Black Panthers headquarters, his case would be like Branzburg’s. To the extent he was being asked about interviews he did there, his case would be more like Caldwell’s.”

Vanessa Leggett

Facts: Freelance writer Vanessa Leggett refused to turn over to a federal grand jury tape-recorded interviews with sources for a book about the 1997 shooting death of Houston socialite Doris Angleton. A judge ruled in July 2001 that journalists are not protected by a privilege against revealing confidential sources, and Leggett was held in civil contempt.

Court ruling: The U.S. Court of Appeals in New Orleans (5th Cir.) ruled in August 2001 that “the journalist privilege is ineffectual against a grand jury subpoena, absent evidence of government harassment or oppression.” The U.S. Supreme Court declined to hear the case.

Outcome for journalist: After serving 168 days in jail, Leggett was released on Jan. 4, 2002, when the grand jury before which she was ordered to testify completed its term.

Comments:

• David Bodney, Steptoe & Johnson (Phoenix): “The Act surely would have protected Vanessa Leggett from choosing between her principles and a prison.”

• Rhodes: “Assuming [her information] was critical, I believe that the same result would have applied. This was a murder case, she had (presumably) important information from knowledgeable sources that (presumably) had refused to provide the same information to the authorities. I would predict therefore that a judge would find the balancing test against her.”

• Smith: “These are also cases involving efforts to uncover evidence of crimes — murder and bribery respectively. Here again, the shield law would have forced the prosecutors to make a variety of showings (as with Caldwell) and the courts would have had to balance competing interests. But it again seems likely that many courts would favor enforce criminal laws over protecting confidentiality.”

Jim Taricani

Facts: In March 2004, U.S. District Judge Ernest C. Torres ordered Jim Taricani of WJAR-TV in Rhode Island to reveal who gave him a videotape showing a former Providence official taking a bribe from an undercover FBI informant. Taricani refused and Torres found him in civil contempt and fined him $1,000 a day. Torres found him in criminal contempt eight months later after Taricani continued to protect his source’s identity.

Court ruling: The U.S. Court of Appeals in Boston (1st. Cir.) in June 2004 affirmed Torres.

“Branzburg governs this case even though we are dealing with a special prosecutor rather than a grand jury,” Chief Judge Michael Boudin wrote for the unanimous three-judge panel.

Boudin added that “there is no doubt that the request to Taricani was for information highly relevant to a good faith criminal investigation; and, as already noted, that reasonable efforts were made to obtain the information elsewhere.”

Based on the Boston court’s ruling, Taricani did not appeal his November 2004 criminal contempt finding.

Outcome for journalist: Sentenced in December 2004 to a six-month home confinement; released in April 2005 after serving four months.

Comments:

• Kelley: “I always felt that housekeeping in the form of plumbing, if you will — plugging leaks, finding out how leaks occurred, that sort of thing — was pretty much at the lowest end of the governmental interest. In my experience, when the government is trying to plug their own leaks instead of doing a bona fide criminal investigation, the courts will simply deny access under the three-part test under the privilege that existed before the most recent round of cases. If all you’re talking about is vindicating the authority of the court when it issues a gag order, and it’s a case when any continuing interest in enforcing the order has passed, I think the balancing test should favor the reporter.”

• Rhodes: “Taricani should win under the proposed statute, but probably would not. He does not have evidence of the underlying bribery crime; rather, he only has evidence of a violation of the court’s protective order and/or the grand jury secrecy rule. However, my experience is that courts have an unusual interest in enforcing their own rules, so I would assume that the court would find the balancing test again him. Again, however, there is some reason to question whether Section (4)(b)(2) would apply given that Taricani did not publish the name of his source. . . . I would assume that a court would find away around this concern.”

• Smith: “These are also cases involving efforts to uncover evidence of crimes — murder and bribery respectively. Here again, the shield law would have forced the prosecutors to make a variety of showings (as with Caldwell) and the courts would have had to balance competing interests. But it again seems likely that many courts would favor enforcing criminal laws over protecting confidentiality.”

Matt Cooper

Facts: Matt Cooper of Time magazine was one of at least seven journalists subpoenaed in 2004 by special prosecutor Patrick Fitzgerald who was investigating who leaked the name of CIA officer Valerie Plame to the press. Cooper gave limited testimony to a grand jury in August 2004, but was subpoenaed again the next month. Cooper’s motion to quash the subpoena on First Amendment grounds was rejected by Chief Judge Thomas Hogan of U.S. District Court in Washington, D.C. Cooper initially refused to comply and in October 2004 was ordered jailed and fined $1,000 per day until he complied with Hogan’s order, but was released on bond pending appeal.

In February 2005, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., ruled that no privilege protects journalists from being compelled to reveal their confidential sources. A request for the entire appellate court to hear the case was rejected, and the U.S. Supreme Court also declined to hear the case, which was sent back to Judge Hogan. In July 2005, Time Inc. agreed to comply with the subpoena and turned over Cooper’s notes to the grand jury over Cooper’s objection. At a July 6, 2005, hearing, Cooper announced that he had received a voluntary waiver from his source and would testify before the grand jury, and Hogan revoked the civil contempt citation against him. It was later revealed, however, that Fitzgerald’s investigation did not focus on the national security implications of outing a CIA agent, but instead on discovering who in the Bush administration may have committed perjury.

Court ruling: “Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source. The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter,” wrote Judge David B. Sentelle of the U.S. Court of Appeals in Washington, D.C.

In a concurring opinion, Judge David S. Tatel urged the adoption of a qualified privilege based federal evidence rules and a 1996 U.S. Supreme Court ruling in Jaffee v. Redmond that a privilege for psychotherapists exists in federal court because such a privilege has become widely recognized by state courts. “I find support for the privilege at least as strong for journalists as for psychotherapists,” Tatel wrote.

Outcome for journalist: Testified before the grand jury. No fine or jail time. It is expected that he will be called to testify in the 2007 trial of I. Lewis “Scooter” Libby.

Comments:

• Rhodes: “Initially, Cooper was believed to have been subpoenaed as part of the Special Counsel’s investigation into who leaked Plame’s identity, i.e. a national security investigation. It now appears that the Special Counsel was also conducting a perjury/obstruction of justice investigation as an offshoot of his original leak investigation. As to the national security investigation, a court would likely find that the Special Counsel had satisfied Section 4 in that Cooper had actual knowledge of who leaked Plame’s identity, an essential element of the crime. Also, Cooper (unlike Miller) actually published information concerning Plame’s identity. Cooper would also likely lose under Section 9(a)(2) [national security exception]. As to the perjury/obstruction of justice investigation, Cooper would again likely lose under Section 4 because he had actual knowledge of what Libby told him, again, an essential element of the perjury/obstruction of justice crime.”

• Smith: “This case, involving a leak of the identity of an undercover CIA agent, could be handled like other criminal cases under Section 4. (It is not an eyewitness case since Section 7 excepts cases in which the witnessed crime is itself the disclosure of the information). The government would also have the argument that the case falls under section 9(a)(2), which governs disclosure of classified information. But it looks to me as if the showings required under Section 9 would have not have been easily made in the Plame affair. I doubt a court would find that disclosure of a single agent has ‘seriously damaged the national security.’

“Nevertheless, it is certainly very possible that a court would order disclosure under Section 4, the general criminal section, concluding that the importance of finding out who leaked the agent’s name outweighs the interest in protecting confidentiality. That is particularly true here, where the ‘leak’ was not information of public interest being disclosed by a whistleblower but information being used to harm a political opponent.

“I doubt the perjury focus would make much of a difference. This was still a criminal matter involving grand jury questioning needed to uncover a crime. Some court might view perjury as less serious than ‘outing’ a CIA agent, but others might not. Either way, in the criminal context, it’s hard to be too optimistic about what the shield law would do, beyond forcing prosecutors to document that they’ve tried to get the information elsewhere and it’s important to their case.”

Judith Miller

Facts: Judith Miller, then of The New York Times, was subpoenaed in August 2004 by special prosecutor Patrick Fitzgerald in his investigation into who leaked the name of CIA officer Valerie Plame to the press. Miller’s motion to quash the subpoena on First Amendment grounds was rejected by Chief Judge Thomas Hogan of U.S. District Court in Washington, D.C. Miller refused to comply and in October 2004 was ordered jailed and fined $1,000 per day until she complied with Hogan’s order, but was released on bond pending appeal. In February 2005, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., ruled that no privilege protects journalists from being compelled to reveal their confidential sources. A request for the entire appellate court to hear the case was rejected, and the U.S. Supreme Court also declined to hear the case, which was returned to Judge Hogan.

Miller continued to refuse to testify, and was taken into custody on the civil contempt charge on July 6, 2005. After spending 85 days in jail, Miller was released Sept. 29 after agreeing to provide limited testimony to the grand jury regarding Libby without revealing her other sources.

It was later revealed, however, that Fitzgerald’s investigation did not focus on the national security implications of outing a CIA agent, but instead discovering who in the Bush administration may have committed perjury.

Court ruling: “I would hold that there is no common law privilege protecting reporters or any other news media personnel, no matter how defined, from the reach of grand jury subpoenas on claim of confidentiality,” wrote Judge David B. Sentelle of the U.S. Court of Appeals in Washington, D.C. In a concurring opinion, Judge David S. Tatel wrote that “I find Branzburg v. Hayes more ambiguous than do my colleagues and because I believe that the consensus of forty-nine states plus the District of Columbia — and even the Department of Justice — would require us to protect reporters’ sources as a matter of federal common law were the leak at issue either less harmful or more newsworthy.”

Outcome for journalist: Miller spent 85 days in jail for refusing to disclose or testify against her sources. She testified to the grand jury on Sept. 30, 2005. The former New York Times reporter is expected to be called as a witness in the 2007 trial of I. Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney.

Comments:

• Bodney: “This case shows the importance of the national security exception. Did these leaks seriously damage the national security? I think the special prosecutor would have to show that he exhausted alternative sources and would have to prevail on the balance of harms. If one were to speculate one would probably imagine the same result in the end, but I think this is one of the those cases that falls into a significant gray zone under the bill. If one could show that the leaks seriously damaged national security there would be a strong likelihood that the reporter would be nonetheless compelled to testify.”

• Samuel Fifer, Sonnenschein Nath & Rosenthal (Chicago): “The shield law would have had no impact in this because the special prosecutor clothed it in national security. That’s an exception that’s as big as all outdoors.”

• Rhodes: “Unlike Cooper, Miller did not publish information concerning Plame’s identity. Accordingly, if Section 4(b)(2)(B) means anything, it should protect Miller in (at least) the perjury/obstruction of justice investigation. This result would also appear to be supported by Section 4(b)(1) in that the Special Counsel could obtain the information it needed from Cooper, thereby making Miller a non-essential source. Accordingly, Miller should be protected under Section 4 in the perjury/obstruction of justice investigation.

“Miller, however, would face a greater risk in the original national security investigation under Section 9 which — unlike Section 4 — does not contain any provision protecting unpublished information. Moreover, given the fact that the Special Counsel was allowed to file his papers under seal, at the time of the ruling on the motion to quash, Miller did not know that the Special Counsel was conducting a perjury/obstruction of justice investigation. Accordingly, the court might have denied her motion under Section 9 without giving her the benefit of knowing the investigation had morphed into a perjury/obstruction of justice investigation.”

Steven Hatfill lawsuit

Facts: Dr. Steven Hatfill, the Army bioweapons expert labeled by the government “a person of interest” in the 2001 anthrax attacks, sued the government in 2003 for violating the Privacy Act. Hatfill alleges government officials disclosed to the press details of its investigation into the anthrax attacks that implicated Hatfill. As part of his lawsuit, Hatfill subpoenaed reporters from several news organizations — including ABC, CBS, Gannett, Newsweek, The Associated Press and The Washington Post — seeking information about their sources for stories.

Court ruling: The case is currently before U.S. District Judge Reggie B. Walton. The media parties are seeking to have the subpoenas quashed.

Outcome for journalists: Unclear.

Comments:

• Rhodes: “Both the Hatfill and [Wen Ho] Lee cases trigger Section 6. In the Hatfill case, I think the court would find that the naming of the reporters’ sources would be required as essential to Hatfill’s case. In fact, the naming of the reporters’ sources is the very essence of his claim.”

• Smith: “This and [Wen Ho] Lee would have been governed by Section 6 of the shield law, which applies to civil litigation. I assume that the plaintiffs could have shown that they had exhausted other sources, that their requests were relatively narrow in scope, and that the information sought was critical to their cases. But here again the courts would then have had to weigh the interests served by compelling or denying disclosure. In this context, it is possible to be much more optimistic that courts would draw the balance in favor of protecting the press. The news stories at issue were about matters of urgent public concern — the anthrax attack in 2001 and nuclear security at Los Alamos — and the interests favoring disclosure are much less significant in a civil context.”

Wen Ho Lee lawsuit

Facts: Dr. Wen Ho Lee, a former nuclear physicist at the Los Alamos National Laboratory in New Mexico, sued the U.S. Departments of Energy and Justice and the FBI in 2000, claiming that they violated his rights under the Privacy Act by publicly releasing information about him when he was under FBI investigation for suspected espionage. Lee, who was eventually cleared of all charges except one charge of mishandling classified information, subpoenaed reporters who wrote about the investigation: Pierre Thomas, formerly of CNN and now with ABC News; James Risen and Jeff Gerth of The New York Times; Josef Hebert of The Associated Press; Bob Drogin of the Los Angeles Times; and Walter Pincus of The Washington Post. The reporters refused to comply with the subpoenas. U.S. District Judge Thomas P. Jackson found five of the six reporters in contempt and fined them $500 per day until they complied. The fines were stayed pending appeal. Pincus, who was found in contempt in November, appealed separately.

Court ruling: In June 2005, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., agreed with Jackson’s ruling while dismissing the charges against Gerth after finding he used no confidential sources and did not know the identity of Risen’s sources.

Judge David Sentelle wrote for the panel that Jackson did not abuse his discretion in requiring the journalists to testify.

“If he cannot show the identity of the leakers, Lee’s ability to show the other elements of the Privacy Act claim, such as willfulness and intent, will be compromised,” Sentelle wrote.

Outcome for journalists: Five media organizations — ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Post — agreed to pay Lee $750,000 as part of a settlement between Lee and the government announced in June. The settlement ended contempt citations for journalists protecting the identities of their confidential sources.

Comments:

• Bodney: “I think the safeguards in Section 6 would apply and offer protection for the reporters, but any subpoena of information in this context would really be the classic fishing expedition — or so it would seem. A court would analyze the safeguards and the competing interests and issue a ruling — there’s a fair degree of play within the statute that would allow for potentially conflicting results.”

• Fifer: “I don’t know that it would have made all that much difference. That was a strange procedural case — not a typical subpoena case. It was a case where Lee filed a civil claim against the government saying the government illegally leaked information. The leakees were the reporters.

“The problem with that is now, they’re no longer collateral in a situation like that, they’re direct. It’s like if a reporter gets into a car accident, the reporter can’t claim privilege. I think Lee might be one of those cases.”

• Kelley: “It is not a slam dunk, but I think Section 5 favors the reporters based on public interest as well as diminished privacy. There was no balancing in that case as is. A civil case is definitely the weakest case for compelling testimony because we’re dealing with private rights. There is no direct public interest involved. But this is a very debatable point, we argue the other side when we argue access to civil cases. There’s plenty of authority out there for the idea that civil cases aren’t as important as criminal cases.

“When you are talking about a privacy right created for a public employee, you’re talking about a privacy right that just can’t be given any kind of constitutional stature because of the lessened interest in privacy that any public employee has. Even though under the Privacy Act, it’s clearly designed to protect public employees from public disclosures, when what is disclosed is something relating to job performance as opposed to some more private aspect of the personnel file, I think the case being made for the importance of the proceedings is at the low end of the spectrum.”

BALCO investigation

Facts: A federal prosecutor in Los Angeles subpoenaed San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams in May in an effort to identify who gave them transcripts of grand jury testimony involving an investigation of steroid manufacturer Bay Area Laboratory Cooperative (BALCO), which allegedly supplied steroids to athletes including baseball players Barry Bonds and Jason Giambi.

Court ruling: A motion by Hearst Corp. to quash the subpoenas is pending in U.S. District Court in San Francisco. U.S. District Court Judge Jeffrey S. White has scheduled an Aug. 4 hearing on whether to quash the subpoenas. In its motion to quash, Hearst argues that Fainaru-Wada and Williams are protected by a qualified privilege that the government cannot overcome.

“While Branzburg is no model of clarity, a significant majority of federal courts that have considered whether the First Amendment provides protection to journalists from compelled disclosure of their confidential sources — including the Court of Appeals in this Circuit — have concluded that it does.”

Outcome for journalist: Undecided.

Comments:

• Bodney: “I don’t believe that Sections 7, 8 or 9 would apply in BALCO. These reporters did not witness any criminal or tortuous conduct if I understand the facts correctly. If one really looks at Section 4 I think that there is a strong likelihood that this bill would protect those journalists. I question whether the U.S. attorney has exhausted all alternative sources of information.

“I also think that there is a very strong public interest argument under Sec. 4(b)(4) — one could argue persuasively that the public interest in newsgathering and maintaining a free flow of information outweighs any interest in compelled disclosure.”

• Kelley: “My memory of reading the facts is that the publicity didn’t focus on the defendants or their likely guilt or innocence, it focused on Barry Bonds and what he said about using steroids. That said, when it comes to showing harm from disclosures in advance of a trial that never occurred, I really don’t see how you can show anything but speculation in terms of harm.

“When a trial occurs and you can’t get a jury picked when everybody’s citing publicity, then it’s a little more clear that some harm has occurred. When the case is ongoing, the court is concerned about more leaks, they want to use the civil contempt remedy — as opposed to criminal which is what’s happening in BALCO given that everything is now moot and there’s no remedial contempt power left to enforce — the interest ought to give way.”

• Rhodes: “Same as Taricani; the court will likely find that the grand jury secrecy rules trump the qualified privilege under the proposed federal shield law.”

• Smith: “I assume that disclosure of grand jury testimony is itself a crime. If so, then the case would be governed by Section 4. The court would end up weighing the interest in protecting the integrity of criminal process (which is disrupted when grand jury testimony is not kept secret) versus the public interest in knowing about a major sports scandal. Many courts would likely favor disclosure under the balancing test in such a context.”