From the Winter 2002 issue of The News Media & The Law, page 7.
By Monica Dias
The idea for a federal statute giving journalists the right to protect confidential sources — a so-called “shield” law — has come and gone several times in the 30 years since the U.S. Supreme Court ruled in Branzburg v. Hayes that reporters have no right to refuse to testify before grand juries.
But book author Vanessa Leggett’s 168-day stay in a federal jail in Houston for refusing to disclose confidential information to a grand jury has revived the debate over whether a federal law is needed, and if so, what it should say.
The Supreme Court left the door open for Congress to act. In its Branzburg ruling, the Court said Congress was free to decide whether a statutory reporter’s privilege was “necessary and desirable” and to “fashion standards and rules as narrow or broad as deemed necessary.” The Court also noted that states were free to do the same.
Before Branzburg, 17 states had enacted shield laws that gave reporters some form of protection against compelled production of confidential or unpublished information. Since the Branzburg decision, another 14 states and the District of Columbia have enacted laws that protect journalists in proceedings in state courts.
However, Congress has never enacted a federal shield law, despite several attempts that followed well-publicized subpoenas of reporters. The first flurry of bills followed quickly after the Branzburg ruling. Another series of bills introduced in the late 1970s followed the jailing of Myron Farber, a reporter for The New York Times who spent 40 days in jail in 1978 for refusing to give his confidential research files to a criminal defendant in a murder case.
The most recent effort occurred in the late 1980s, following a round of Justice Department subpoenas to television networks for their footage of the 17-day hijacking of TWA Flight 847 in Beirut and Algiers.
In the six years following the Branzburg decision, 99 proposals for a federal shield law were introduced in the House or Senate, but none won passage, a House committee reported in 1979.
The proposals failed for two main reasons. First, no consensus could be reached on how the law should define “journalist.” Rep. Floyd V. Hicks (D-Wash.) told Congress in 1973 that “it seems hasty at this time to promote” a federal shield law when this and many other questions remained unanswered. Sen. Sam Ervin (D-N.C.), who introduced one of the bills in 1973, later wrote that the efforts also failed in part because press groups wanted an absolute privilege, instead of a qualified privilege that would require them to disclose information in certain circumstances.
Those same reasons doomed an attempt in 1987 to stir interest in a federal shield law. Sen. Harry Reid (D-Nev.) approached press groups about filing a bill, but he dropped those plans when press organizations could not agree on what they wanted, said Evan J. Wallach, who was Reid’s general counsel and public policy adviser.
“The reason there was no consensus was because there were two groups: the ‘purists’ who refused to believe that the Branzburg trilogy was the last word and felt that any protection provided by legislation could be abrogated, and the ‘realists’ who were willing to take what they could get,” said Wallach, who now is a U.S. Court of International Trade judge in New York City.
“The realists were mostly lawyers, and the purists were mostly reporters.”
The same conflicts that stalled past efforts to enact a shield law exist today, according to media attorneys and press groups.
First, how should “journalist” be defined? Several federal circuit courts have said someone is a journalist if he or she is engaged in investigative reporting and have an intent at the inception of the newsgathering process to disseminate news to the public. Some federal appeals courts have found that definition broad enough to include a book author (Shoen v. Shoen) and a documentary film maker. (Silkwood v. Kerr-McGee Corp.) If the person’s intent to disseminate the news to the public is clear, the journalist’s privilege can protect them, those courts have ruled.
Press groups also would have to decide whether they should push for an absolute privilege or if they could accept something less. For instance, the qualified privilege that some federal courts have granted to reporters would allow confidential sources and reporters’ notes to be subpoenaed if the information was clearly relevant, if it was necessary and critical to the case, and if it could not be obtained from alternative sources.
Even if a consensus could be reached, this Congress might not be receptive to a federal shield law.
“Their attention is diverted,” said Molly Hemsley, the Newspaper Association of America’s director of governmental affairs and legislative counsel. “It’s an election year . . . (and) we’re at war.”
Sources: Statement of Rep. Floyd V. Hicks, Congressional Record, Jan. 20, 1973; Leslye DeRoos Rood & Ann K. Grossman, The Case for a Federal Journalist’s Testimonial Shield Statute, 18 Hastings Const. L.Q. 779 (1991) (citing Sen. Sam Ervin, In Pursuit of a Press Privilege, 11 Harv. J. on Legis. 233 (1974)); Stephen R. Hofer, The Fallacy of Farber: Failure to Acknowledge the Constitutional Newsman’s Privilege in Criminal Cases, 70 J. Crim. L. & Criminology 299 (1979). u