Buttressing the First Amendment
The first attempts in years to enact a federal shield law may see something unprecedented — widespread, although far from unanimous, news media support
From the Winter 2005 issue of The News Media & The Law, page 4.
By Grant Penrod
Watergate. Iran-Contra. Whitewater. Enron. WorldCom. Abu Ghraib.
Confidential sources played a key role in helping the media expose those scandals, imprinting them into the American lexicon. Sen. Christopher Dodd (D-Conn.) cited them all in November when he introduced a bill to establish a federal reporter’s shield, the first such effort since 1987 when Sen. Harry Reid (D-Nev.), now Senate minority leader, circulated a draft of a proposed shield law.
In the federal courts alone over the past year, there have been at least seven cases or investigations seeking to compel disclosure of sources by dozens of journalists and news organizations. More than a dozen news organizations have been subpoenaed in Dr. Steven J. Hatfill’s Privacy Act lawsuit against the Justice Department. Rhode Island investigative reporter Jim Taricani refused to disclose the source of a videotape leaked from a grand jury corruption investigation and is serving six months’ home confinement.
Since the U.S. Supreme Court’s 1972 split decision in Branzburg v. Hayes that the First Amendment does not provide journalists with a privilege not to testify in grand jury proceedings, lower federal courts have differed significantly over what protections the First Amendment provides. Most federal circuits recognize some form of privilege, but in August 2003, the U.S. Court of Appeals in Chicago (7th Cir.), flatly rejected any reporter’s privilege under the First Amendment.
“It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas,” Judge Richard Posner wrote. “We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”
With judicial protection uncertain and under assault in the federal courts, some journalists and media attorneys are turning to the idea of a federal reporter’s shield law. Thirty-one states and the District of Columbia have such laws, but, except for non-binding Department of Justice guidelines for U.S. attorneys, no such law exists in the federal courts. Dodd wants to change that.
“This bill is designed to ensure that the free speech guarantees enshrined in the First Amendment to the Constitution will be strong and effective for many generations to come,” Dodd said in a Nov. 19 Senate speech. “[T]hese freedoms which we hold so dear are not as safe as they have been in other times in the life of our nation. They have come under attack by the heavy hand of government in a manner not seen since the height of the Watergate scandal 30 years ago.”
Sen. Dodd’s Free Speech Protection Act of 2004 was introduced too late to be acted upon before Congress adjourned for the year, but he plans to introduce a variation of the bill this term. Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) introduced a similar bill, the Free Flow of Information Act of 2005, on Feb. 2.
Not everyone in the news media is convinced that a federal shield law is a good idea. Attempts in the 1970s and 1980s to pass shield laws failed in part because journalists couldn’t agree on whether they wanted a shield law.
“I think the big argument is kind of the purist argument, which is the Constitution is all we need and we shouldn’t be tacitly acknowledging that the Constitution doesn’t protect us by asking for a shield law,” said Professor Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota and a former executive director of The Reporters Committee for Freedom of the Press.
“I actually used to share that view, and I’ve kind of come around over the last 20 years or so in part because I’ve seen how efficacious shield laws really are in discouraging subpoenas,” Kirtley said. “The kind of situation that’s going on right now with Valerie Plame is getting a lot of attention because these journalists may be going to jail . . . but to me the benefit of the shield law is really not at this stage, it’s in stopping the subpoenas in the first place.”
A federal grand jury is investigating whether White House officials leaked the identity of Plame, an undercover CIA operative, to the media. At least five journalists have been subpoenaed in the investigation, and two have been held in contempt for refusing to testify.
Kirtley points out that until recently, the Justice Department guidelines served as a deterrent in such cases, but “it appears that the current administration does not hold those guidelines in the same regard as former administrations.”
Kevin Goldberg, an attorney and lobbyist for the American Society of Newspaper Editors, argues that a shield law can buttress the reporter’s privilege from being eroded by the courts without undermining the news media’s ability to rely on the First Amendment.
“The First Amendment, like any other constitutional protection, is just a baseline” he said. “There is nothing saying Congress cannot give more protection, especially where — as we’ve seen now — the First Amendment protection has been chipped away to a point where it almost doesn’t even seem to exist.”
If a shield bill is to advance, lawmakers must decide what and how much protection the bill would provide. State shield laws provide either absolute protection or a qualified privilege that may be overcome by a sufficient showing of need by the party wanting to subpoena a journalist. Shield laws that protect journalists from having to reveal confidential sources may also extend protection to non-confidential sources, unpublished outtakes, notes or other materials.
Dodd’s bill would provide absolute protection for all sources — confidential or not — and a qualified privilege for notes, outtakes or “other data, irrespective of its nature, that is not itself communicated in the news media.” In order to overcome the qualified privilege, the party seeking a subpoena would have to show “clear and convincing evidence” that the information is critical to a significant legal issue, cannot be obtained through other means, and that there is an overriding public interest in the disclosure.
‘Nasty little bloggers’
The bigger debate is likely to be not what a shield law would cover, but who would be covered by it. Since the law cannot apply to every person called to testify as a witness in a proceeding, some definition of who is covered by the privilege is necessary, even if it comes dangerously close to allowing the government to define who is and is not a journalist.
Kurt Wimmer, a media attorney with Covington & Burling in Washington, D.C., who provided advice on Pence and Boucher’s bill, sees difficulty in deciding who will be covered.
“Obviously you want the coverage to be as broad as it possibly can, especially these days when there are all types of new media out there,” Wimmer said, “but the political reality is that if it is seen as too broad of an evidentiary privilege it will be very difficult to get anything through Congress.”
Goldberg identifies two approaches to defining those to whom a shield law would apply: a “status” approach, based on who a person works for, and a “function” approach, based on what a person does.
The Reporters Committee has long advocated a function approach, arguing that freelancers and other nontraditional journalists need and deserve the same protections as others. Such a definition is often derived from the 1987 opinion of the U.S. Court of Appeals in New York (2nd Cir.) in von Bulow v. von Bulow. The court held that “whether a person is a journalist, and thus protected by the privilege, must be determined by the person’s intent at the inception of the information-gathering process,” and that “an individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”
The court, borrowing from the Supreme Court’s Branzburg opinion, reasoned that, “It is beyond peradventure that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
Dodd’s initial bill, however, uses the status approach and would provide protection to someone who gathers information for the news media with the intent of distributing it to the public. News media are defined as newspapers, magazines, periodicals, radio, television, press associations, news agencies, wire services, or “any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.”
The status approach has its advantages, according to Goldberg. “From the perspective of the lobbyist, it makes it a lot easier to get this bill passed. Because one of the problems we anticipate is that the folks on Capitol Hill are going to come back and say we don’t want to give this protection to anybody who considers themself a journalist, certainly not those ‘nasty little bloggers,'” he said.
Wimmer agrees. “If you tried to cover every blogger then I think almost for sure you’d have something that people in Congress would object to because of the hundreds of thousands, if not millions, of Americans that have Web pages or something that could be considered a blog,” he said.
But Goldberg and Wimmer agree that the status approach leaves some journalists unprotected.
“It really puts the emphasis on the fact that you almost have to be a part of the established media,” Goldberg explained. “It’s a weakness because it does not cover those situations such as a Vanessa Leggett where the person is a freelancer, doesn’t have any credentials to speak of, and doesn’t have anyone to back them up or speak on their behalf, nor do they have necessarily a contract of any kind to say, look this is a genuine news gathering expedition.”
Leggett, a Houston freelance writer, was jailed for 168 days in 2001 for refusing to reveal to a federal grand jury confidential materials gathered for a book she was writing.
A powerful example of the drawback to the status approach is playing out in California. Nick Ciarelli, who hosts ThinkSecret.com under the pseudonym Nick dePlume, is being sued by Apple Computer Inc. for revealing secrets about upcoming Apple products before they were announced to the public. Apple believes that someone with access to its products is illegally leaking information to Ciarelli for his Web site and wants it to stop.
Although only 19 years old, Ciarelli has published ThinkSecret.com for six years. “I employ the same legal newsgathering techniques used by any other journalist,” he said. “I talk to sources, investigate tips, follow up on leads, and corroborate details. I believe these practices are reflected in Think Secret’s track record for news reporting.”
But a shield law that takes the status approach might not cover him.
Kirtley sees this as a significant problem. “To the extent that the [Supreme Court] has looked at the issue of who is ‘the press,’ they have focused on functionality. It’s been a question of what do you do. Are you gathering news and information for the purposes of disseminating it to the general public? And if you are then you are probably a journalist. And so I think that some definition along those lines is the best definition that one could come up with.”
Kirtley added that while adopting language along those lines is a possible solution, she worries that it ultimately may not be one that Congress finds palatable.
Special treatment?
One criticism of a proposed federal shield law is that it would provide special treatment for a small constituency — the news media — which already receives significant special protection from the First Amendment. In an atmosphere of recent media scandals and perceived bias, selling the public and Congress on such a protection may be difficult.
Dodd addressed the issue in his speech to Congress. “This legislation . . . is not merely about protecting the press,” he explained. “Instead, this legislation is about consumer protection. It is about openness, debate, the free flow of information and deliberation — the very ideals that the Senate holds so dear. It is also about ensuring that our constituents, the American citizenry, have access to the knowledge and information they need to make educated decisions and fully participate in our democracy.”
Another criticism is that a reporter’s privilege is not similar to the other court-recognized privileges from testifying, such as the attorney-client and doctor-patient privileges.
Professor Earl C. Dudley Jr., who teaches evidence and trial advocacy courses at the University of Virginia School of Law, said there are significant differences between the reporter’s privilege and other privileges that make comparison difficult. Most privileges exist to protect the content of a confidential communication. A reporter’s privilege primarily protects not the content of communication, but the identity of one of the parties to the communication. Because the source, who in many cases is an individual who has broken a law, is unknown, “the judge’s only remedial option is to apply pressure to the reporter,” he said.
Goldberg agrees that the reporter’s privilege is different from other recognized privileges. “In a way it may be special protection for journalists, but it may be one whose time has come,” he said. “The public benefit does exist in creating a strong whistleblower culture that we’ve shown has worked, and has a definite public interest to it.”
However, Wimmer pointed out that the reporter’s privilege also has a lot in common with other privileges.
“In particular there is a privilege that is recognized between investigators and informants, and the theory for protecting what an informant says is to maintain the flow of information from the source to the investigator,” he explained. “You have a very similar situation here where the purpose of protecting disclosure is not just to benefit the media. It’s really to protect the free flow of information from the source, and future sources, to the media.
“If sources perceive that the media [have] been annexed as an arm of law enforcement or an arm of civil litigants, they are less likely to talk to the press because they won’t have any confidence that what they say will remain with the press or that their identity can remain confidential,” he said.
The similarity, said Wimmer, is that in each case the aim is to enable a source to speak freely — whether to a doctor, a lawyer or a journalist — because that free flow of information serves a broader societal purpose.
Some critics have tried to draw a distinction between the reporter’s privilege and other privileges based on privacy. Attorney-client and doctor-patient communications have an aspect of personal privacy that journalist-source communications do not, they argue.
“The only privilege that protects privacy in that kind of sense is the marital communications privilege,” Dudley said.
Wimmer explained that the issue is not whether the speaker has a legitimate expectation of privacy as in some other areas of the law. “Privacy has come into the popular lexicon in a way that is just extraordinary,” he said. “It has a tendency to creep into places where it really doesn’t belong.” Wimmer stresses that the purpose of a privilege is to protecting the free flow of information.
Convincing Congress
Getting a federal shield bill through Congress will require unity from the news media.
“Shield laws, whether rightly or wrongly, are perceived by people in Congress or state legislatures as being special interest legislation,” Kirtley said. “If the news media — the beneficiary — are not united on the necessity [and] desirability of this, then why the heck should a member of Congress stick his or her neck out to pass a piece of legislation like that?”
Goldberg emphasized that journalists should be patient, so that the foundations can be properly laid for a process that is likely to take years and not months.
“Everybody needs to find innovative ways to sell this. They need to sell it to Republicans and folks that are not traditionally supporters of the news media. They need to sell it to the public and show it as something that benefits the public as opposed to just something that benefits the press.
“People need to make folks understand that the confidential sources, while it seems like just sort of an inside-the- Beltway-Washington-insider type tactic, really benefit everybody and do benefit even reporters in small towns. I think we need to find better stories about confidential sources at the local level, he said.”