From the Winter 2005 issue of The News Media & The Law, page 8.
By Tony Pederson
After many years, many heated discussions and many disappointments, I am finally in the corner with those supporting shield laws. More than 30 years in journalism as a writer, editor and now academic provide me with some perspective on the issue. Additionally, I have lived and worked in a state — Texas — with no shield law and no real prospects for having one soon.
My decision to change has not been easy. But the spate of recent cases seeking to compel reporters to disclose information simply cannot be ignored. We have tiptoed around the issue of reporter privilege in the United States for more than 30 years. Now, too much is at stake and the dangers to the integrity of the journalistic process are too real to continue to rely on what many believe is a phantom privilege that has existed only in the minds of some journalists.
The arguments against shield laws have been good ones, if a bit emotional at times. They have been a combination of constitutional positions based on this country’s historic commitment to freedom of expression as well as a generally pragmatic reluctance to deal with legislative bodies on something as sensitive as reporter privilege. The arguments against shield laws have fallen into three basic areas.
First, it has been common belief among many that the First Amendment alone provides all the protection necessary for freedom of the press, including a reporter privilege. We are all familiar with the basic “unarticulated rights” that the Supreme Court has found in the First Amendment.
Some of us have hoped that sooner or later the court would see fit to find a reporter privilege among those rights not specifically named. I believe we can all agree that this particular hope is gone. Even if a perfect case might wind its way through the appellate process, no one of sound mind could expect the current Supreme Court to find in favor of a reporter privilege.
The “phantom” privilege referred to earlier dates from Branzburg v. Hayes in 1972. A deeply divided Supreme Court, while ruling against the reporter, seemed to find a basis for a qualified reporter privilege. In his eloquent and prescient dissent, Justice Potter Stewart warned that without a privilege, the historic independence of the press would be undermined.
The so-called three-prong test emerged from this case as a standard for compelling disclosure of sources and information by journalists. Also emerging was the unwritten agreement that prosecutors would not abuse the power to subpoena journalists. In recent months, since the Seventh Circuit ruled in 2003 in McKevitt v. Pallasch that no privilege exists, an alarming number of journalists have been called into court.
Several key cases remain in the courts, and one can only reasonably conclude that the legal outlook is grim. With security issues taking more precedence than ever, not to mention an overall increase in government secrecy, there is no reason to believe that the number of reporter privilege cases will decline.
The second argument against shield laws has generally focused on the difficulties in establishing a definition of a journalist. Any law that provides a privilege necessarily must define whom the statute will cover. This is a well-placed caution with strong historical perspectives on the dangers of government defining who is a journalist. Our international colleagues, especially those in Latin America, for many years have fought press laws that defined journalists. Licensing and mandatory membership in press groups have been frequent and convenient ways for government to restrict press freedom.
A number of attempts were made to pass a federal shield law after Branzburg, and the definition was one of the major obstacles. It still will be. One can only hope that, with a strong tradition of press freedom in the United States, the definition issue can be handled with a care and a precision that will not restrict freedom of the press.
The third major argument against a shield law has always been the danger of going to any governmental body to establish a statutory privilege. It’s a cliché, but it’s absolutely true: What any governmental body grants it can take away. Or what it doesn’t take away it can modify in any number of restrictive ways that may end up creating more problems than are solved.
Many of those opposed to shield laws have held that the privilege is there anyway, even if not recognized by all courts, and that seeking a legislative remedy is an admission that no privilege exists. At this point in the process, it seems silly to me to continue to hold the idea that a constitutional privilege, even an unarticulated one, exists.
There is another argument, and one that I have counseled reporters on in various difficult circumstances. This argument holds that, in the worst of circumstances, a journalist can refuse to comply with the subpoena and go to jail. Against all legal and public sentiment, we have all held sacred the stand of individual journalists who have paid a severe penalty for what we believe. Sadly, several colleagues in Texas and elsewhere have been forced to do exactly this over the years.
Perhaps the most unfortunate case I know of anywhere is that of Vanessa Leggett. The would-be true crime writer spent 168 days in federal detention in Houston in 2001 for refusing to answer questions and turn over notes about her work on the 1997 murder of Houston socialite Doris Angleton. The Justice Department’s own guidelines were not followed in subpoenaing Leggett, and this was after federal authorities had tried to get her to work undercover to aid the investigation.
During Leggett’s incarceration, much of the commentary centered on whether she was a real journalist and, therefore, entitled to any privilege. The debate should have focused on federal prosecutors’ abuse of Leggett’s rights. I was executive editor of the Houston Chronicle at the time, and it seemed like an absurd debate to me. The Chronicle was among the first news organizations to contribute financially to Leggett’s defense, and we periodically wrote editorials and news stories to make sure she was not forgotten. I visited her during her incarceration. I admired her then and still do.
Thirty-one states and the District of Columbia have shield laws. They offer varying degrees of protection, and some work better than others. I am pledging to do all I can to make sure Texas is added to the list of states with a shield law.
Last year Sen. Christopher Dodd (D-Conn.) proposed a federal shield law to establish what he calls an absolute protection for confidential sources. Another proposal from Dodd is expected to come up in the current Congress. Expect the debate to be emotional and even acrimonious. It’s too early to assess the chances for passage. On this one, too, I will be on board and do everything I can to encourage passage.
Shield laws are not necessarily the complete answer to challenges on reporter privilege. But this much is certain: The loss of an aggressive and independent press puts all individual liberties at risk. Even the media bashers and the hard-liners on prosecutorial rights will have to listen at some point. Constitutional government in this country has often been a balancing act, and a reasonable balance is what is needed. Sadly, I now conclude that independent journalism is at the point of being compromised unless a privilege is recognized for all reporters.
Tony Pederson, Belo Distinguished Chair in Journalism at Southern Methodist University, is the former executive editor of the Houston Chornicle.