NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · July 20, 2005
Senate panel implored to advance reporter’s shield bill
July 20, 2005 · The legal rules for how journalists can uphold promises to confidential sources — an issue that has splintered the federal courts for decades and sent New York Times reporter Judith Miller to jail — must be clarified by Congress, a six-member panel of journalists and media lawyers told a Senate committee Wednesday in support of a proposed shield law.
A Bush administration official scheduled to testify against such an idea canceled his appearance. But Deputy Attorney General James B. Comey said in written testimony to the Senate Judiciary Committee that protecting journalists from testifying before grand juries or being subpoenaed for their notes or other material would be “bad public policy.”
The bill is based on the Justice Department’s own 1973 guidelines designed to protect the news media from compelled testimony and disclosure of confidential sources, although the bill provides an absolute privilege protecting confidential sources. However, the bill’s sponsors modified the proposal earlier this week to allow an exemption when there is an “imminent” threat to national security.
Supporters of a shield law said Congress must protect the nation’s free press by helping reporters better navigate the legalities of one of the cornerstones of journalism: protecting confidential sources.
“The rules of the road as I try to do my job as a reporters are chaotic at best,” Time magazine’s Matthew Cooper told the committee. “Right now, if I pick up the phone and call a senator or his or her staff or a civil servant and they say, ‘Don’t quote me on this, but . . . ‘ or ‘Don’t identify me but . . .’ I can’t really know what I’m getting myself into assuming what follows is important and controversial enough to rise to the level of litigation. . . . As a working journalist, I’d like to know better what promises I can legally make and which ones I can’t.”
In the 33 years since the U.S. Supreme Court ruled in Branzburg v. Hayes that a reporter did not have a privilege from testifying before a grand jury, federal courts have split on the issue.
The high court’s 1972 opinion “has mystified courts, lawyers and journalists alike. As a result, the federal courts are in a state of utter disarray about whether a reporter’s privilege protecting confidential sources exists,” said Time magazine Editor-in-Chief Norman Pearlstine. Earlier this month, Pearlstine decided to comply with a grand jury subpoena and turn over Cooper’s notes and other material despite his objections.
The issue took more than three decades to become a crisis because “prosecutors did not subpoena
journalists because of their respect for the freedom of the press,” said Geoffrey Stone, who teaches at the University of Chicago Law School. “What we face today is a serious anomaly in our history and one in which Congress should address,” he said.
Floyd Abrams, one of Miller’s lawyers, told the committee that “when a journalists speaks to her sources and promises to keep her word, she should keep her word.”
“Ms. Miller sits in a jail cell not far from here one floor away from Zacharias Moussaoui. It’s time to adopt a shield law,” Abrams said, referring to the suspected 20th hijacker in the Sept. 11 plot.
In response to a question from Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) about the differences in the view of law between the two cases of Cooper and Miller, Abrams said there was little substantial difference. The difference, he said, was that Cooper obtained a “clear, unambiguous, uncoerced waiver” and Miller did not. Pearlstine also noted that Time Inc. was a defendant in the case and The New York Times was not.
New York Times columnist William Safire harshly criticized general waivers such as the ones executive branch officials were “asked” to sign.
“Waivers of confidentiality are a sham, a snare, a delusion,” he said, noting that such waivers are not uncoerced “when you put a gun to someone’s head and you are saying, ‘You will lose your job or you will have to testify before a grand jury if you don’t sign this.'”
Among the arguments Comey, the Justice Department official, made in his written testimony is that a federal shield law would overrule the 1972 U.S. Supreme Court decision in Branzburg.
But several panelists, including Washington, D.C., media lawyer Lee Levine, refuted that, noting that Justice Byron White wrote in Branzburg that “Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned.”
Panelists also challenged Comey’s claim that a shield law “would create serious impediments to the department’s ability to effectively enforce the law and fight terrorism.”
Thirty-four states and the District of Columbia, in a recent friend-of-the-court brief to the U.S. Supreme Court filed in the Miller and Cooper appeals, urged the high court to recognize a reporter’s privilege. “In doing so, the states have shown that shield laws have had no material impact on law enforcement or on the discovery of evidence in judicial proceedings, criminal or civil,” Levine said.
The District of Columbia and all states except Wyoming recognize either a qualified or absolute reporter’s privilege.
Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) asked Specter to schedule another hearing so Comey can testify.
Specter conceded after the hearing that the bill likely will not advance soon. “Right now, it will be very hard to get a bill through given the calendar that we have,” he said, referring to the upcoming Supreme Court confirmation hearings. “Today was a significant start to exploring the problem.”
(S. 340 and H.R. 581, “The Free Flow of Information Act of 2005”) — KM