Floyd Abrams Delivers 20th Annual Silha Lecture
Journalists have promised confidentiality to sources since before the American Revolution, Floyd Abrams told the audience at the 20th Annual Silha Lecture on October 24, 2005. Today, the controversial question is whether these promises are protected by the First Amendment.
Abrams, a partner in the New York law firm of Cahill Gordon & Reindel, was introduced by Jane Kirtley, Silha Professor and director of the Silha Center for the Study of Media Ethics and Law in the School of Journalism & Mass Communication, as "one of the most respected First Amendment lawyers in the United States." Abrams' experience as a litigator, starting with the Pentagon Papers case, has encompassed virtually every major media law case that has been heard by the U.S. Supreme Court in recent decades. Most recently, Abrams represented New York Times reporter Judith Miller, who spent 85 days in jail to protect her confidential source in the ongoing investigation regarding CIA agent Valerie Plame.
Abrams' lecture, "Confidential Sources: Protection or Prohibition?" was delivered to an audience of more than 300 students, faculty, and community members in the Cowles Auditorium at the University of Minnesota's Hubert H. Humphrey Center. Abrams explained that Branzburg v. Hayes, decided in 1972, is the only Supreme Court case to consider the question of whether journalists have a constitutional right to protect their sources when they have witnessed criminal activity and are subpoenaed to appear before a grand jury. Although a plurality of the Court rejected the privilege, dissenting opinions, coupled with Justice Lewis Powell's enigmatic concurrence, have been interpreted by some lawyers as recognizing a qualified constitutional privilege in other situations. More recently, however, lower courts have rejected this interpretation.
Describing his experience defending Miller, Abrams stressed that it was important not to allow decisions about reporter's privilege to be "clouded" by political considerations. He argued that criticism of Miller's reporting of events leading up to the Iraq war should be distinguished from her efforts to protect her confidential source. Although Miller did not prevail in the courts, Abrams asserted that her refusal to compromise her sources has helped the future of reporter's privilege in two ways. First, Abrams argued that Miller's willingness to go to jail to protect a principle should help efforts to enact a federal reporter's shield law. Second, Abrams believes the public will now be more inclined to speak to journalists, confident that reporters are prepared to face prison rather than break a promise to a source. "The whole purpose of this protection is to encourage people to talk to journalists so that journalists can report to the public," Abrams said. "If we have to wait until a judge decides later on if a leak is a 'good leak' or a 'bad leak,' the public won't know whether they can talk to journalists because journalists won't know what kind of promise they can make."