NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · Oct. 19, 2005
Justice Department reiterates opposition to shield law
Oct. 19, 2005 · The Department of Justice told the Senate Judiciary Committee Wednesday that there is no need for a federal reporter’s shield law because its rules for subpoenaing reporters have worked well for more than three decades, and creating a law could slow the department’s subpoena process in cases of imminent threats to national security.
“We seek information about confidential sources from reporters only when it really, really matters,” Chuck Rosenberg, U.S. attorney for the Southern District of Texas, said on behalf of the U.S. Justice Department. “I don’t see anything in our work that justifies discarding 33 years of careful practice that has served the nation well.”
The Senate is considering S. 1419, “The Free Flow of Information Act of 2005,” which would codify a qualified reporter’s privilege in the federal courts. Already, 31 states have a shield law and nearly every state has at least some court-recognized qualified privilege. However, the federal law has been murky since the 1972 U.S. Supreme Court decision in Branzburg v. Hayes that journalists have no First Amendment privilege to withhold confidential sources from a grand jury investigation. Now, there are no comprehensive federal guidelines since many of the circuits are split on the interpretation of that decision.
The Justice Department has its own guidelines limiting when and how federal prosecutors may subpoena journalists, their notes or their phone records, and those guidelines should be enough to protect journalists, Rosenberg said. Since 1991, only 12 subpoenas seeking confidential sources have been issued to the media.
“We should not enter this debate believing that the First Amendment is under assault by the Department of Justice. Manifestly is it not,” he said.
However, former U.S. attorney Joseph diGenova, who also spoke out against the proposed bill, said that some sort of federal reporter’s privilege is needed.
“Given the purported success of these guidelines, Congress should enact them into law, ” diGenova said.
Rosenberg disagreed, saying codifying the guidelines would limit the Justice Department’s ability to react to immediate threats to national security.
As written, the bill allows for compelling the disclosure of a source’s identity if it is necessary to prevent an imminent and actual harm to national security or if the disclosure clearly outweighs the public interest in the free flow of information. But Rosenberg said that these exceptions still could slow the Justice Department.
“We can move very fast if we need to,” he said. “If you have to go to court in an imminent harm situation, we don’t know how long that will take.”
diGenova disputed that, saying that if a journalist is subpoenaed, the Justice Department will end up in court when the journalist asks the court to quash the subpoena.
Joining Rosenberg and DiGenova in opposing the bill was Steven Clymer, professor of law at Cornell Law School, who warned of having too broad a privilege.
“Any reporter’s privilege should apply only under certain conditions,” he said. “The proposed bill could apply to bloggers and it would apply to Al-Jazeera. There’s no telling how a court would determine who it applies to.”
The senators also heard testimony from journalists stressing the importance of having a federal shield law. New York Times reporter Judith Miller, who was imprisoned for 85 days this summer for refusing to reveal the identity of her confidential source, said confidential sources are the life’s blood of journalism.
“Without them, whether they are in government, large or small companies, or in nonprofit organizations, people like me would be out of business,” she said.
She also commented on her particular situation and said it has set a dangerous precedent.
“It has emboldened people who want to get information [through a subpoena] from the newspaper,” Miller said. “It has heightened the belief that confidentiality is something that can be breached.”
Joining Miller in testifying in support of the proposed bill were ABC News President David Westin, Philadelphia Inquirer Managing Editor Anne Gordon, and Dale Davenport, editorial page editor of The Patriot-News in Harrisburg, Pa.