From the Winter 2002 issue of The News Media & The Law, page 3.
Who is a "real" journalist?
We at the Reporters Committee don't have the magic definition. But one thing is very clear: Vanessa Leggett is a journalist.
The federal courts in Texas never disputed that the 33-year-old Houston author who spent 168 days in a federal detention center was a bona fide journalist. When she asserted a reporter's privilege to refuse to identify her confidential sources, they correctly determined that the pertinent legal question was whether such a privilege exists under the First Amendment.
But other journalists, particularly those from mainstream, big-circulation newspapers, decided early on that her jailing in July was not a big deal because she wasn't one of them. Although the question of whether she was a journalist was never an issue before the courts, it was usually the first question reporters asked of us "experts." "Why are you so concerned?" they'd ask. "She's not a 'real' journalist, is she?"
It's one thing to ask that question in an attempt to explain the chaotic law of the reporters' privilege to the public. It's entirely different to use that issue as an excuse to ignore the plight of a reporter who is trying to do the right thing.
Eventually, most reporters covering the story figured out that the U.S. Court of Appeals in Houston (5th Cir.) was going to decide not whether Leggett was a journalist, but whether there was a privilege for any a journalist to withhold confidential information from a grand jury. It didn't matter whether she was a good journalist or a rookie journalist. All journalists were going to have to live with the consequences of whatever decision the court made.
The Leggett case is a classic example of how independent reporters and authors, particularly those just starting out, face challenges to their work the rest of us never experience. The Justice Department clearly took advantage of the media's ambivalence toward Leggett to harass and coerce her.
The Justice Department has guidelines for the circumstances under which they will subpoena a journalist. The guidelines require that the information sought be essential to a successful investigation, that a subpoena "should not be used to obtain peripheral, nonessential, or speculative information" and that investigators "should have unsuccessfully attempted to obtain the information from alternative nonmedia sources." Further, the guidelines require that subpoenas "be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material."
Various law enforcement agents and prosecutors knew Leggett was working on a book about the murder of Houston socialite Doris Angleton. Authorities suspected Angleton's husband, Robert, had hired his brother, Roger, to kill her. They asked Leggett to use her access to witnesses as a journalist to work undercover for them. When she refused, they subpoenaed her to testify about her four years of research and turn over all of her notes and tapes and all copies. They did not consider her to be a "real" journalist, so they didn't follow the Justice Department's guidelines in issuing the subpoena.
In other words, they considered her to be a journalist until she refused to become their paid informant. The attorney general and the court system should not let the federal prosecutors in Houston get away with such hypocrisy.
Leggett was sent to jail until the grand jury expired on Jan. 4. About two weeks after she was released, a new grand jury indicted Robert Angleton for various murder and conspiracy charges without Leggett's testimony. Because it is possible Leggett could be called as a witness at the trial, she has not withdrawn her petition for review to the U.S. Supreme Court. Whether it's a good idea to tempt the fates and ask the Supreme Court to reconsider its troubling decision in Branzburg v. Hayes regarding the reporters privilege is a topic for another column.
Ironically, there may be a silver lining in the Fifth Circuit decision that declared Leggett did not have a privilege to withhold information from the grand jury. In a footnote, the court said that, while it was not charged with determining whether Leggett is a journalist, if the question had been presented, the court would have used a well-established test that originated in the Second Circuit. That standard asks whether a person claiming a reporter's privilege against compelled disclosure of confidential sources (1) is engaged in investigative reporting; (2) is gathering news; and (3) possesses the intent at the inception of the newsgathering process to disseminate the news to the public.
Under this standard, which is more liberal than many state shield laws, there is no doubt that Vanessa Leggett is a journalist.
— Lucy Dalglish