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Journalists are under increasing pressure to testify in court, threatening their independence and leading many to consider a federal shield…

Journalists are under increasing pressure to testify in court, threatening their independence and leading many to consider a federal shield law.

From the Winter 2006 issue of The News Media & The Law, page 10.

By Casey Murray

Observing events, noticing details and connecting the dots before weaving everything in a clear and straightforward story are skills any good editor seeks.

Unfortunately, those journalism skills are also in demand in the courtroom, where journalists are regularly being compelled to testify under oath about their work. When White House aide I. Lewis “Scooter” Libby goes on trial next January, journalists are expected to be summoned to the witness stand to testify about their conversations with him.

Already four journalists have testified before the federal grand jury that indicted Libby on perjury and obstruction of justice charges: Matt Cooper and Viveca Novak of Time magazine, Judith Miller, formerly of The New York Times, and Tim Russert of NBC and MSNBC. Two others &#151 Walter Pincus and Glenn Kessler of The Washington Post &#151 gave deposition testimony as part of the same investigation.

And there’s evidence that the trend has trickled down to lower courts. The district attorney in Luzerne County, Pa., has three times subpoenaed Wilkes-Barre Times Leader reporter David Weiss &#151 most recently on Feb. 1 &#151 seeking information about Weiss’ interviews with a man charged with murder. A convicted killer in Rhode Island in early January subpoenaed the notes of a Providence Journal reporter. In Wakefield, R.I., a Superior Court judge refused to quash a subpoena against a journalist for The Westerly Sun. And those are just a few recent examples.

When journalists testify, the so-called Fourth Estate is no longer entirely independent from the three branches of government, threatening the press’ independence.

“I’m very much worried about this growing tendency to subpoena journalists,” said Geneva Overholser, professor of journalism studies at the University of Missouri and Curtis B. Hurley Chair in Public Affairs Reporting. “They make wonderful eyewitnesses. Their job is to pay attention and write about what they see. But to the extent they’re required to share information with the courts, we’re really perverting the notion of a free press operating independently from the government.

“All in the journalism world should be deeply concerned,” she said. “It’s a short step for courts to start looking at journalists as information gathers for the government &#151 it’s a seductive lure. Using journalists is a lot easier and cheaper than courts doing all the information gathering themselves.”

The issue shot to the forefront with the plight of Miller, who in early October testified in front of the grand jury convened by Patrick Fitzgerald, the special counsel investigating who leaked the identity of CIA operative Valerie Plame. Miller originally refused to testify, but after spending 85 days in prison, she accepted a waiver from Libby, an aide to Vice President Dick Cheney, and testified about her conversations with him.

“The phenomenon of trying to have journalists go back and get waivers, I think that’s one of the most pernicious aspects of this,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota and former executive director of the Reporters Committee for Freedom of the Press. “We’ve always dealt with subpoenas, but now the press is being told by federal investigators that they have to go get waivers. It’s very damaging to the reporter-source relationship and it makes sources more reluctant to come forward. It’s really an awful situation.”

Some in the media were appalled that Miller’s jail time and the waiver agreement that sprung her from behind bars did not stir more passion in the journalism community.

“Judy Miller, for pretty solid reasons, was not very popular with the press,” said Timothy Phelps, Washington Bureau Chief for Newsday. “She had done a lot of weak reporting on WMDs [weapons of mass destruction] and Iraq, and people were disinclined to support her. But the thing is, it’s the principle, not the person. In letting this slide, we’re just putting ourselves in a lot more jeopardy in the future.”

Phelps said that the journalism community didn’t fight hard enough, and “the message was loud and clear for the prosecutors for the first time that they could roll us over, and now they will.”

While Miller grabbed the headlines as the poster-child of the problem of reporters testifying, the weakening of a reporter’s right to keep confidential sources has been going on for much longer than the Miller saga.

“If journalists are testifying more readily &#151 and it appears that they are &#151 it’s because they have less protection than they once had from the courts,” said Kirtley. “It’s not really a question of ethics, it’s whether the legal pinnings are less secure than they used to be. If a journalist is put in a situation facing jail time for not testifying, they’re getting legal advice telling them that they don’t have a leg to stand on. As a consequence, they’re going to testify.”

Opening the door

A July 2003 ruling by Judge Richard A. Posner of the U.S. Court of Appeals in Chicago (7th Cir.) may have provided the legal kick start for the weakening of reporter’s privilege. Posner, ruling in McKevitt v. Pallasch, ordered journalists to turn over recordings of interviews with David Rupert, a key witness against Michael McKevitt, on trial for being a member of a terrorist organization.

Posner, writing for a unanimous three-judge panel, attacked a common legal understanding of the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes, in which a 5-4 court ruled that there was no reporter’s privilege against testifying rooted in the First Amendment. However, in a concurring opinion, Justice Lewis F. Powell wrote that there should be a balancing test between press freedom and the obligation to assist in criminal proceedings to determine whether or not a reporter’s privilege applies. Since Branzburg, media lawyers have used Powell’s concurrence &#151 and the fact that his opinion was necessary for the court to reach a majority &#151 to argue that courts should apply a balancing test in reporter’s privilege cases.

Posner’s decision, however, cast doubt upon jurisdictions in which courts have used Powell’s Branzburgopinion to create a reporter’s privilege.

“Some cases that recognize the privilege,” wrote Posner, “essentially ignore Branzburg . . . some treat the ‘majority’ opinion in Branzburg as actually just a plurality opinion . . . some audaciously declare that Branzburg actually created a reporter’s privilege . . . . The approaches that these decisions take to the issue of privilege can certainly be questioned.”

In the two and a half years since Posner’s ruling, it has been cited in more than 10 cases when a judge is discussing the extent of the Branzburg decision in whether to recognize a reporter’s privilege.

“If the judiciary does not consider the news media as an essential part of a functioning democracy, they’re not going to see a policy reason to support a privilege,” Kirtley said. “If a judge is more cynical on the role of the media, it’s hard to justify a constitutionally based privilege.”

In the McKevitt decision, it is clear Posner does not think the media deserves any unique protection.

“It seems to us that rather than speaking of a privilege, courts should simply make sure that a [media] subpoena . . . is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas,” 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.”

Turning to Congress

Things are likely to stay the way they are unless Congress enacts a federal shield law. Several proposals have been introduced, but so far none have advanced. And the Justice Department has come out strongly against any protection of confidential sources, leaving many to believe a reporter’s privilege bill stands little chance of passing in this administration.

“Journalists would love some type of federal shield law that would mirror the shield laws already in place in the majority of states,” said Howard Kurtz, who covers the media for The Washington Post. “Realistically speaking, I don’t think that’s going to happen for a couple of years.”

With no federal shield law and with judges chipping away at the foundation of the privilege, journalists will have to take a more proactive role to explain the need for a privilege, supporters say.

“We have to make the public understand the dangers of journalists testifying,” Overholser said. Journalists “have to be the ones to give a voice to other journalists because nobody else is. If we don’t stand up for our own work, who will?”

“The media needs to be clearer on the impact shield laws have on the public,” Kirtley said. “Without them, it’s the public who suffers.”

The media also needs to put up more of a fight when other journalists are asked to testify, said Phelps.

“The only thing to do is stand up to them next time,” he said. “We need to make a lot more noise and show a lot of support and make it clear that we’re not going to make it easy for prosecutors to do this. In the past, the government knew they weren’t going to get anything out of the press &#151 now it’s the opposite.”

Journalists must also try to avoid putting themselves in situations where they might have to testify.

“It seems that we’re on a very dangerous trajectory in the journalism community,” Overholser said. “We need to think exceedingly carefully about a stronger, new set of rules for anonymous sources. We have to be very careful when using them and dealing with sources. The reporter should develop a set of ethical guidelines and be straightforward with the source on exactly how far the reporter will go to protect the source. That’s one of the more useful things we can do.”

Miller’s case has made reporters begin to think more judiciously about their use of anonymous sources, said Kurtz.

“Every journalist is going through a bit of soul searching about whether to grant anonymity to sources,” he said. “In the wake of Judy Miller, the prospect of going to jail is no longer a hypothetical possibility.”

On the other hand, if reporters back away from anonymous sources too much, they might miss important stories.

“Granting anonymity is way too promiscuous right now,” Kurtz said. “But in certain instances it’s the only way to get the story. If we completely lose unnamed sources in reporting it hurts our ability to break stories.”