- Sources of the Journalist’s Privilege
- Rationale for Developing a Federal Shield Law
- Conceptual Challenges to the Journalist’s Privilege
- Practical Obstacles to Fashioning a Federal Shield Law
- Difficulty in defining who is a journalist
- An absolute privilege or a qualified one?
- National security concerns
In mid-April 2008, as the U.S. Congress was poised to consider passing the “Free Flow of Information Act of 2007,”1 a federal law that would, in a limited fashion, protect journalists from compelled disclosure of confidential sources or information by courts, prosecutors, or parties in lawsuits, the frontrunner candidates in the 2008 presidential race announced their support for the legislation. At annual meetings hosted April 14 and 15 by the American Society of Newspaper Editors (ASNE) and Associated Press (AP), Sens. Barack Obama (D-Ill.), Hillary Clinton (D-N.Y.), and John McCain (R-Ariz.) each gave speeches in which they publicly announced their backing for the bill.
In his April 14 speech at the AP annual meeting, McCain said that he had “narrowly” decided to support the bill. “It is, frankly, a license to do harm, perhaps serious harm. But it also is a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction,” McCain told the roomful of journalists, continuing, “There will be times, I suspect, when I will wonder again if I should have supported this measure. But I trust in your integrity and patriotism that those occasions won’t be so numerous that I will, in fact, deeply regret my decision.”
McCain’s measured remarks frame the complexities and high stakes on both sides of an issue in media law that may be arriving at a pivotal historical moment: the journalist’s privilege. The journalist’s privilege is the claim that journalists have a right to refuse to disclose confidential sources or information when they have been compelled to do so in a judicial process such as a grand jury investigation, or a criminal or civil trial. McCain’s comments reflect the tenuous balance upon which the journalist’s privilege rests: that under some circumstances, it better serves the public interest and preserves the free flow of information to allow a journalist to keep secrets from the government, an investigator, a court, or a party in a lawsuit. The remarks also highlight particularly salient concerns in contemporary American society and politics: the public’s right to know, openness in government and big business, and a heightened concern for national security.
High-profile cases of reporters, broadcasters, and even bloggers served with subpoenas and held in contempt of court have drawn attention to the journalist’s privilege issue from the news media and the academic community in recent years, but the question of whether and when an individual should be able to claim the privilege has a rich and complex background in American law and society. Moreover, regardless of the fate of the “Free Flow of Information Act of 2007,” American society and its courts will continue to engage in the process of defining and balancing concepts like “journalism,” “news,” “public interest,” and even “national security” and “terrorism.”
This article is meant to help its reader gain a broad understanding of the journalist’s privilege and its sources in the law, as well as consider the complexities of defining who is a journalist, and whether and how those individuals should be protected by the law. It will identify and explain the ideological and legal sources, justifications, and criticisms associated with recognizing a journalist’s privilege, and it will analyze the proposed federal shield law currently before the U.S. Congress and examine some of the practical obstacles to its passage.
There are three potential sources in the law for a journalist’s privilege: the First Amendment, judicially created common law, and statutes or court rules. For most of America’s history, including its colonial days, courts have not recognized a journalist’s privilege from any source, although publishers in England did have a limited privilege to refuse to reveal some confidential information in libel cases.2
Nevertheless, the absence of a privilege has not stopped American journalists from promising confidentiality to their sources – or serving jail time to keep their promises. The journalists’ argument is that anonymous sources are sometimes essential to independent reporting on public affairs. Without the ability to protect anonymous sources who may otherwise fear retribution for disclosing sensitive or secret information, they say, journalism will become an “investigative arm of government.”3
In one early example in 1722, James Franklin – a printer and newspaper publisher whose younger brother and apprentice Benjamin would eventually become known as one of the “founding fathers” – was called before the Colonial Assembly and asked to divulge the source behind an allegedly seditious libel he had published. When Franklin refused, he was jailed for one month.4 In 1848, John Nugent, a reporter for the New York Herald, became the first journalist to claim a privilege, but without success. He was jailed for contempt of Congress when he refused to divulge the identity of a source who had given him a copy of a secret draft of a U.S. treaty with Mexico.5 Nearly 50 years later, Maryland enacted the first state shield law in 1896 after a Baltimore Sun reporter was jailed for refusing to reveal the identity of a confidential source to a grand jury.6 Over the next 76 years, other states slowly followed Maryland’s lead. By the time the U.S. Supreme Court decided Branzburg v. Hayes in 1972, its first and thus far only case addressing the journalist’s privilege question, 17 states had created a journalist’s privilege via statute.7
In Branzburg, the Supreme Court held that reporters who have witnessed criminal activity do not have a constitutional right to refuse to identify confidential sources when subpoenaed to testify before a grand jury. But the 5 to 4 decision did not settle the matter in other contexts. Justice Powell, part of the five-justice majority, added a separate concurring opinion to “emphasize” what he believed to be the “limited nature” of the Court’s decision.8 Powell wrote that journalists enjoy some constitutional protection when summoned to testify before a grand jury, and that they cannot be called “other than in good faith,” nor if the information sought has only a “tenuous” relationship to the underlying investigation.9 Powell’s “enigmatic”10 opinion left lower federal courts to struggle with whether, why, and in what contexts a constitutional privilege is appropriate.
Most circuit courts of appeal to consider the issue of constitutional privilege have reached the conclusion that the First Amendment offers some protection for reporters seeking to guard information related to news gathering.11 After all, even Justice Byron White admitted in his opinion for the Branzburg majority that “news gathering is not without its First Amendment protections.”12 The journalists who asserted the privilege in Branzburg argued that if journalists cannot guarantee confidentiality, some sources will no longer come forward. This “chilling” effect will remove from the public sphere information that otherwise would have – and should have – reached it.
The precise contours of the First Amendment privilege vary. Some federal appeals courts limit Branzburg to its specific facts, finding that even though there is no privilege for a grand jury subpoena, there is at least a qualified privilege to protect confidential information in most other circumstances. Other courts recognize a privilege only in civil cases.
For example, less than six months after the Supreme Court issued its Branzburg opinion, a three-judge panel of the 2nd Circuit U.S. Court of Appeals unanimously upheld a pre-Branzburg trial court order finding constitutional protection for subpoenaed journalists.13 In Baker v. F & F Investments, the 2nd Circuit held that in a civil case, a journalist could not be compelled to name a confidential source “absent a concern so compelling as to override the precious rights of freedom of speech and the press.”14 In United States v. Burke, the 2nd Circuit extended Baker’s holding to criminal cases.15
The qualified constitutional privilege in the 2nd Circuit extends to confidential sources and news gathering materials. A party seeking to overcome the privilege must show that the information sought is “highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.”16 Justice Potter Stewart proposed a similar test in his Branzburg dissent that has gained acceptance in several circuits.17 Stewart’s test also required the party seeking to overcome the privilege to present evidence that the subpoenaed journalist actually has the information sought.
In contrast to the 2nd Circuit, the D.C. Circuit has recognized a much more limited constitutional privilege. In Zerilli v. Smith, the court held that a reporter has a qualified constitutional privilege to refuse to name a confidential source in a civil case.18 But the federal courts in the D.C. Circuit have declined to extend the privilege to criminal cases, and have held non-party journalists in contempt, even in civil cases, for refusing to reveal their sources.19
The 7th Circuit Court of Appeals has declined to recognize a journalist’s privilege, holding that the only inquiry is whether the subpoena is “reasonable in the circumstances.”20 In the 2003 case McKevitt v. Pallasch, Judge Richard Posner called the prevailing view in other circuits – that a qualified privilege exists outside the context of a criminal grand jury – “rather surprising in light of Branzburg.”21 The 7th Circuit panel held that courts should enforce subpoenas issued to journalists so long as they are issued in “good faith.”22
As Posner noted, the subpoena at issue in McKevitt sought recordings of three journalists’ conversations with a witness whose identity was known and who planned to testify at the trial.23 The situation was factually different from most privilege cases where reporters seek to protect the identity of a confidential source or shield confidential information that has not been published.
Posner’s view – that the Constitution provides no more protection for reporters facing subpoenas than it does for any other subpoena recipient – remains the minority view among federal appellate courts. There is some evidence, however, that his influential position has persuaded other federal judges to retreat from privilege findings in post-Branzburg jurisprudence.24 Some commentators argue that the McKevitt decision has contributed to a diminished regard for constitutional privilege among all federal judges.25
In January 1975 Congress adopted the Federal Rules of Evidence following 10 years of debate and several drafts prepared by a committee of lawyers, judges, and academics.26 The rules established a uniform procedure for the admission of evidence, including the testimony of witnesses, in federal courts. In Article V, the portion of the rules governing testimonial privileges, Congress rejected the specific suggestions of the committee which drafted the rules. Instead, legislators created an open-ended rule that calls for judges to “interpret” testimonial privileges according to the “reason and experience” of the “common law.”27
The U.S. Supreme Court has not ruled on whether the rules of evidence provide for a common law journalist’s privilege, but the Court’s adoption of a therapist/patient privilege in Jaffee v. Redmond28 provides a two-part test that balances the benefit of the privilege against the evidentiary harm it causes and then looks to the experience of other states with a similar privilege. Although Jaffee deals with the therapist/patient privilege, not the journalist’s privilege, the test applies to the adoption of any new privilege under the Federal Rules of Evidence and the common law.
In Jaffee, the Supreme Court found that the public and private interests supported by the therapist/patient privilege were “significant,” in contrast to the “modest” evidentiary benefit that would result from denying the privilege.29 The court then looked to the “experience” of the states and noted that all 50 had adopted some form of therapist/patient privilege.30
No federal appellate court has explicitly endorsed a common law journalist’s privilege since Jaffee was decided in 1996. Many judges have simply avoided the issue by holding that any journalist’s privilege is not absolute, and can be overridden by compelling government interests in disclosure.31
For example, in In re Grand Jury Subpoena, Judith Miller, each judge on a three-judge D.C. Circuit panel reached a different conclusion on whether a common law privilege exists – one judge argued it does, one argued it does not, and one declined to reach the issue. Nevertheless, all three judges agreed that the government’s interest in determining who leaked the identity of a covert CIA agent to the press outweighed the reporter’s interest in protecting her source and the public’s interest in newsgathering.32
Prior to Jaffee, at least one federal Court of Appeals endorsed a common law journalist’s privilege, but the 3rd Circuit’s opinion in Riley v. City of Chester relied heavily on the “constitutional dimension” of the issues involved.33 Perhaps for that reason, the Riley common law privilege has taken on a “constitutional dimension” of its own, even in subsequent 3rd Circuit cases.34 This means that analysis under the Riley standard resembles First Amendment privilege cases more closely than post-Jaffee common law privilege cases. The most recent courts to consider a common law journalist’s privilege cite Riley in passing, but apply the Jaffee test.35
Reporter’s privilege statutes, or “shield laws,” are in place in 34 states and the District of Columbia.36 The scope of protections provided by the statutory privileges varies from state to state. For example, Alaska’s statute37 employs broad language in granting journalists a privilege to refuse to testify unless the court finds that exercise of the privilege would “result in a miscarriage of justice” or “be contrary to the public interest.”
Maine’s statute,38 on the other hand, specifically identifies when a court may override the privilege. In Maine, the information sought must be material and relevant to the case, necessary to settle the issue, and unobtainable from other sources, and disclosure must be shown to be in the public interest before a court can compel the reporter to reveal it. Maine’s shield law, signed into law on April 18, 2008, follows a familiar pattern employed by several other states in that it sets out a broad prohibition that can be overcome if the party seeking disclosure can prove the elements of a four-part test similar to that proposed by Justice Stewart in his Branzburg dissent.
The U.S. Congress has also considered numerous proposals for a federal shield law – 99 were proposed between 1972 and 1978 alone.39 The most recent proposal, H.R. 2102, passed in the House in October 2007, and its companion, S. 2035, is pending in the Senate. The bills, both titled “The Free Flow of Information Act of 2007” use a specific approach similar to the Maine law to qualify the privilege. Though their language is not identical, both bills provide a privilege for journalists to refuse to disclose information related to news gathering unless certain specific requirements are met. For example, under both versions of the bill, a journalist could be forced to disclose the identity of a confidential source if it is necessary to prevent a specific act of terrorism, it is unobtainable from other sources, and the public interest in disclosure outweighs the public interest in gathering news.
Although no federal shield law has been enacted to date, regulations governing when U.S. Department of Justice officials may issue subpoenas to reporters have been in place since the early 1970s.40
The guidelines are structured like the proposed federal shield law with a general prohibition and specific exceptions. They call for federal officials to exhaust other sources of information before seeking to subpoena a reporter. They also require negotiations with the reporter before issuing a subpoena in most circumstances, and explicit permission from the U.S. Attorney General. To obtain that permission, the Justice Department official must state “reasonable grounds” to believe that the information is necessary to resolve a disputed issue or solve a crime.
It is important to note, however, that the Attorney General guidelines are only that, and courts will not enforce them.41 Some commentators have argued that because they are not binding as a matter of law, the Attorney General has too much authority to simply ignore them when they become inconvenient.42
High profile cases involving subpoenaed journalists have galvanized advocates on both sides of the journalist’s privilege debate.43 In addition to policy arguments based on the importance of a journalist’s privilege to the news gathering process and the free flow of information, proponents often contend that a strong privilege is necessary to bring uniformity to the fractured web of regulations that has developed over the last 200 years and to stop what they say is a trend toward more subpoenas of journalists.
Proponents contend that the lack of uniformity between different jurisdictions can chill sources even in states with strong shield laws.44 For example, a reporter who is not a party to a state court employment discrimination action in Minnesota may be protected by the state’s shield law from forced disclosure of confidential source information. But if the same case is brought under federal anti-discrimination laws in the federal courthouse across the street, the reporter will have to convince a federal trial judge to be one of the first in the Eighth Circuit to adopt a constitutional or common law privilege. Meanwhile, if the reporter had the good fortune of being subpoenaed in the 2nd Circuit, he or she would have a better chance to convince the federal judge there to apply a constitutional privilege, as courts in that circuit have already recognized one. Without a uniform federal standard, the argument goes, there is no way for journalists or sources to know whether confidentiality can truly be guaranteed.
Professor Geoffrey Stone contended in a 2005 law review article that uncertainty chills sources and creates confusion among journalists, sources, and lower federal courts.45 Only an absolute privilege, Stone argues, with perhaps a narrow exception for imminent threats to national security, will properly protect sources and give journalists confidence in the scope of their confidentiality guarantees.46
Stone argues that the cost of the privilege, in terms of lost evidence, will be small.47 Sources will come forward anonymously to speak to journalists, or they will not come forward at all. Law enforcement is thus better off with a privilege than without it, because the existence of the privilege will lead sources to disclose information they might otherwise withhold, which would leave the government, and the public, in the dark.48
Supporters also contend that the number of subpoenas issued to journalists has increased precipitously in recent years. According to data obtained by the Reporters Committee for Freedom of the Press (RCFP) through a Freedom of Information Act (FOIA) request, the Justice Department issued three subpoenas to reporters in 2006. But a new study by law professor RonNell Andersen Jones suggests that number could be inaccurate. The April/May 2008 issue of American Journalism Review reported that Jones’ study found more than 3,000 news organizations had received subpoenas from federal and state authorities in 2006 alone,49 and that more than 300 of those were federal subpoenas. That is 100 times the number reported by the Justice Department in response to the RCFP’s FOIA request.50 “If 2006 is a representative year, it certainly would appear that reporters and their organizations are spending time, resources and money in a pretty wide variety of cases,” Jones told American Journalism Review.
In addition to the increase in subpoenas, some commentators contend that courts are growing less receptive to arguments for a First Amendment privilege, harming journalists’ ability to contest subpoenas. Lucy Dalglish and Casey Murray of the RCFP called Judge Posner’s opinion in McKevitt v. Pallasch, coupled with post-Sept. 11, 2001 national security concerns, “the perfect storm that devastated the federal reporter’s privilege.”51 The authors note a “dramatic spike” in federal subpoenas and they praise journalists for completing investigative reports despite the threat, but argue that some stories will be lost to cautious sources without a strong journalist’s privilege.52
The apparent support for passage of a federal shield law from scholars and politicians does not do away with some legitimate criticism of the journalist’s privilege. Even with a federal law protecting confidential sources and information from compelled disclosure, some fundamental conceptual challenges to the privilege will remain.
Other privileges that are recognized in American jurisprudence, such as the attorney-client privilege or the doctor-patient privilege, subordinate the truth-seeking function of courts to the preservation of a confidential relationship. But critics of the journalist’s privilege point to key differences between journalists as a group and doctors, lawyers, and psychotherapists who enjoy a recognized testimonial privilege regarding confidential communications with their clients or patients. Doctors and lawyers are licensed, accredited professionals, but journalism has no membership requirements. Critics argue that because journalists are not licensed or accredited, making defining who is a journalist problematic, journalists should be subject to subpoenas just as all other citizens are. Washington Post reporter Walter Pincus has criticized recent efforts to pass a federal shield law, writing that supporting the legislation amounts to journalists asking Congress to regulate them.53
Another distinction that sets journalists apart from other groups that enjoy testimonial privileges is that the journalist-source privilege “belongs” to the journalist and not to the source. Although journalists are frequently mindful of the wishes of their sources when they are subpoenaed to reveal source identities,54 the journalist ultimately asserts the privilege, not the source.55 In the context of the attorney-client privilege, the privilege belongs to the client, not the attorney. Furthermore, unlike lawyers and doctors, whose relationship with their clients is contractual because a client typically pays for the services rendered, a reporter’s relationship to his sources lacks the same kind of formality.56
Even if journalists are granted a testimonial privilege similar to the one enjoyed by some professionals, the question of whether a privilege should be applicable to criminal proceedings is controversial.
Granting a privilege to protect the relationship between a journalist and source potentially creates a tension with the Sixth Amendment’s safeguard of a criminal defendant’s right to compel witnesses to provide testimony supporting his or her case. According to the Sixth Amendment, a criminal defendant “shall enjoy the right … to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.” If a journalist called as a witness invoked a right to refuse to answer questions about sources or information, the defendant might be denied access to critical information in the trial. Therefore, a journalist’s privilege must be balanced with the Sixth Amendment’s guarantee of a fair trial for criminal defendants.57
In theory, the Sixth Amendment should trump a journalist’s privilege rooted in either common law or in a statute because the guarantee of a fair trial is a constitutional guarantee that takes precedence over judge-made law and statutory protections. As a practical matter, however, courts often engage in a balancing analysis based on the facts and circumstances of a case to determine whether to compel a journalist’s testimony in a criminal case. In In re Farber, for instance, the New Jersey Supreme Court held that a provision of the state constitution affording a criminal defendant the right to compel witnesses – similar to the protections granted by the Sixth Amendment – prevailed over the state’s shield law. However, the court stated that it would hold a preliminary hearing to determine whether issues of relevance, materiality, and the availability of alternative sources for the information sought favored compelling a journalist’s testimony.58 While acknowledging that the state constitution’s protections for compelling witness testimony trumped statutory recognition of a journalist’s privilege, the New Jersey Supreme Court nevertheless required the criminal defendant to make a showing that the evidentiary value of compelling the reporter’s testimony outweighed the public interest in the free flow of information.
Critics of a journalist’s privilege say placing a legal burden on a criminal defendant to show the value of compelling a journalist’s testimony also raises constitutional concerns because such a requirement is inconsistent with the words of the Sixth Amendment, which do not require it. At a Senate Judiciary Committee hearing in 2006, Deputy Attorney General Paul J. McNulty said, “[The proposed federal shield law] requires a court to balance criminal defendant’s ‘constitutional rights’ against the public interest in newsgathering and in maintaining the free flow of information. Such a balancing requirement is indefensible; individuals facing grave criminal penalties, say, for example, a life sentence, should not have their ‘constitutional rights’ – indeed, their liberty – thwarted by the interest of ‘newsgathering.’”59
Concerns about recognizing the privilege under the Sixth Amendment in criminal proceedings notwithstanding, critics contend that the privilege may create an impediment to the truth-finding function of all trials and proceedings in general. To the extent that the function of the civil and criminal proceedings is predicated on the principle of seeking the truth through witness testimony, the journalist’s privilege, like all other testimonial privileges, could frustrate that goal by allowing a journalist to refuse to share information about sources and material.
In addition to the conceptual and constitutional concerns surrounding a journalist’s privilege, practical obstacles stand in the way of fashioning a federal shield law. Some of these obstacles, such as reaching a satisfactory definition of who the law is meant to cover, create challenges for the adoption of any shield law; others, such as dealing with threats to national security, are particularly problematic on the federal level.
Justice Byron White, in writing for the plurality opinion in Branzburg, outlined concerns about creating a privilege under the First Amendment for journalists, which he said “would present practical and conceptual difficulties of a high order.” White continued, “Sooner or later it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”60 Nevertheless, courts and state legislatures have continued to create their own definitions, addressing the complex question of “who is a journalist” in different ways, state by state, and jurisdiction by jurisdiction. Meanwhile, modern technology and the Internet’s potential to “make every person … his or her own journalist,”61 have added salience and urgency to the question.
With a majority of states having established a statutory journalist’s privilege,62 lawmakers have not shied away from engaging in the process of determining who qualifies as a journalist. Statutory definitions vary widely, however.
Some of the state statutory definitions are quite broad. Tennessee, for example, extends a qualified privilege to “a person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast.”63 Minnesota’s open-ended “Free Flow of Information Act” protects any “person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public.”64 In Alabama, by contrast, the privilege is limited to only a “person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station;”65 and in Ohio, the privilege covers only “person[s] engaged in the work of, or connected with, or employed by … any noncommercial educational or commercial radio broadcasting station, … any noncommercial educational or commercial television broadcasting station, or any newspaper or … press association.”66
Federal courts sometimes have focused on an analysis of the information-gathering activities of the person claiming the journalist’s privilege rather than his or her institutional affiliations. One of the most widely recognized tests came from a 1987 2nd Circuit U.S. Court of Appeals decision in von Bulow v. von Bulow.67 Here a witness was held in civil contempt after she invoked a journalist’s privilege in refusing to hand over written material that had been subpoenaed. The witness claimed that she was preparing a book on the subject of the lawsuit in which she was called to testify, but the court ruled that an “individual claiming the privilege must demonstrate, through competent evidence, the intent to use [the] material – sought, gathered, or received – to disseminate information to the public and that such intent existed at the inception of the newsgathering process.” The court relied in part on a 1977 decision from the 10th Circuit that had extended a journalist’s privilege to a documentary filmmaker on similar reasoning – the fact that he had gathered investigatory information with the intention of disseminating the information to the public through a documentary film.68
The 9th Circuit employed the test developed in the von Bulow case in the 1993 case Shoen v. Shoen to extend the privilege to a professional investigative book author.69 The court called the 2nd Circuit’s reasoning “persuasive,” adding “The journalist’s privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public. … What makes journalism journalism is not its format but its content.”70
Legal scholars and commentators have recognized the inevitable question of whether bloggers or other online news reporters should be covered by a federal journalist’s privilege statute.71 In crafting definitional schemes for their proposed federal journalist’s privilege statutes, many scholars have favored a functional, format-free approach of legal analysis, similar to what was set out in the von Bulow test.
Representative of the functional analyses is Professor Linda Berger’s proposal in a 2003 law review article that “any individual engaged in journalism should be protected by journalists’ shield laws.”72 Berger identified three essential elements that a court could consider to determine whether an individual was “engaged in journalism:” regular and public dissemination of information, the presence of internal verification measures (such as editors), and transparency regarding the owner or sponsor of the publication and the editorial standards that are followed.
It is unclear whether either version of the “Free Flow of Information Act of 2007” currently before Congress will provide criteria which satisfy scholars, commentators, lawmakers and the executive branch, let alone create satisfactory protection to journalists, no matter how they may be defined.
H.R. 2102, which passed the House Oct. 16, 2007, defines “covered person” as “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.”73
The version of the bill before the U.S. Senate, S. 2035, has yet to come to a vote. The version reported out of the Senate Judiciary Committee on Oct. 22, 2007 defines “covered person” as “a person who is engaged in journalism” and includes the covered person’s supervisors, employers, parent company, subsidiary or affiliate.
According to an Oct. 16, 2007 article on the Web site c|net, H.R. 2102’s sponsors tailored their “covered person” definition to exclude “casual” bloggers by including the requirement that the person receive “a substantial portion of the person’s livelihood or … substantial financial gain” for their efforts. For some commentators, however, a “means tested” privilege is too restrictive. According to Tim Rutten, a columnist for the Los Angeles Times, “it’s hard to imagine any American court accepting the notion that our Constitution protects only the speech of those who make money from it.”74
Another obstacle to creating a federal journalist’s shield law may be, in part, the demands of journalists themselves. Attempts to pass a federal shield law in the years since the Branzburg decision were complicated by journalists who refused to support a qualified privilege. A qualified privilege enables a court to compel testimony when it determines that the need for procuring the information through compelled disclosure outweighs the public’s interest in the reporter’s ability to keep it confidential. An absolute privilege, on the other hand, enables journalists to refuse to provide testimony in all circumstances. Within 24 hours of the Supreme Court’s ruling in Branzburg, Sen. Alan Cranston (D-Cal.) introduced a bill providing an absolute privilege for reporters in federal and state proceedings.75 In 1973, 65 bills were introduced to provide some form of testimonial privilege for journalists. Ultimately, Sen. Sam Ervin (D-N.C.), who introduced one of the shield bills in Congress in 1973 and who chaired the Senate Watergate Committee, stated that efforts to pass a federal shield law consistently failed in part because the press wanted an absolute privilege.76
Critics of a qualified privilege claim that it is difficult to accommodate the competing interests that might qualify a privilege without unduly limiting the reporter’s protection. Cranston quoted Professor Paul Freund of Harvard Law School as saying, “It is impossible to write a qualified newsman’s privilege. Any qualification creates loopholes which destroy the privilege.”77 Nevertheless, the qualified privilege is the norm in the vast majority of state shield laws 78 and appears in the current versions of the federal shield bills.
Most proponents of a shield law codifying an absolute privilege, however, have conceded an exception to a shield law for circumstances in which compelled testimony will assist in identifying a breach to national security.79
National security concerns pose a significant obstacle to passage of a federal shield law today. Critics claim that shielding journalists from a compelled disclosure of information which could avert a threat to national security will hamper law enforcement efforts to combat such threats effectively. Meanwhile, shield law supporters claim that protecting the confidentiality of sources and information is integral to reporting on sensitive issues, including national security, and serves the public’s right to know about the government’s actions and matters of public interest. As Judge J. Harvie Wilkinson wrote in his concurrence in United States v. Morison, “The First Amendment interest in informed public debate does not simply vanish at the invocation of the words ‘national security.’”80
Concerns about threats to national security fall into three distinct categories. Critics claim that a federal shield law might: permit withholding of information received through confidential sources that would aid a criminal investigation or reveal a threat of impending attack; encourage leaks of national security secrets to the media which allow terrorists and others to learn about American anti-terrorism strategies; and protect terrorists themselves who pose as journalists to gather information and plan attacks.
Federal shield law critics contend that journalists should not be accorded a privilege to withhold information with potentially dangerous implications for national security. Many journalists, meanwhile, recognize that ethical principles might prompt them to voluntarily assist law enforcement in situations of imminent danger to national security, but reject the notion that they should be compelled to serve as an investigative arm of government. At a July 2005 congressional hearing, New York Times columnist William Safire stated, “If a national security crisis is about to occur, as citizens, reporters have to help. But journalists and reporters are not the fingers at the end of the long arm of the law.”81
The Department of Justice has also expressed concerns that a federal shield law would transfer to the judicial branch of government authority over law enforcement and national security determinations that is constitutionally reserved to the executive branch. Assistant Attorney General Rachel Brand testified before the House Committee on the Judiciary on June 14, 2007 that because the executive branch is responsible for international relations and national security, it includes officials with “access to the broad array of information necessary to protect our national security” as well as the responsibility to oversee confidential investigations and to promulgate regulations which protect that confidentiality. Therefore “the executive is better situated and better equipped than the judiciary to make determinations regarding the national security interest,” Brand testified.82
Critics also say a federal shield would encourage harmful leaks of national security secrets to the media. The Valerie Plame leak investigation that eventually sent New York Times reporter Judith Miller to jail arose from a government leak of classified information, and some have said the February 2008 federal subpoena of New York Times reporter James Risen came in response to his exposure of botched secret CIA activities in Iran in his book, “State of War.”83 Government sources who leaked classified information were also instrumental in the exposes of the Bush Administration’s domestic wiretapping program and a program that secretly tracked the finances of suspected terrorists.84 Although the President has called such leaks and the subsequent news coverage “disgraceful,” proponents of the shield law claim that similar stories, such as the revelations of abuse at the Abu Ghraib prison in Iraq, are integral to fulfillment of journalism’s watchdog function.85
In a Feb. 10, 2006 New York Times op-ed column, Former Central Intelligence Agency Director Porter Goss wrote that a federal shield law would empower more unauthorized sources to speak to journalists, and would allow publication of stories with sensitive intelligence information, thus impeding terrorism investigations. According to Goss and others, the American media are sources of information that aid terrorists in eluding capture because they can discern the course of an investigation through news reports.86 In 2002, the CIA stated in a report that al-Qaida relies on the American media to help it evade U.S. intelligence operatives, according to the Reporters Committee for Freedom of the Press.87 Through facilitating the publication of sensitive information by shielding sources who divulge that information to journalists, the law would indirectly jeopardize government investigations, critics say.
In an April 2, 2008 “views letter” asserting their opposition to S. 2035, Attorney General Michael Mukasey and Director of National Intelligence John Michael McConnell echoed Goss’ concerns, saying added protections of a journalist shield would empower leakers to disclose highly sensitive information without fear of identification.88
On the other hand, journalists argue that valuable sources will not come forward to reveal information about government abuses unless a federal law establishes a uniform standard for a journalist’s privilege in federal courts. Although reporting on classified leaks may be controversial, newspaper publishers and editors have stated that they consult with the government regarding stories that might implicate significant security concerns. The Times’ domestic wiretapping story, for instance, was held for over a year in deference to government requests to withhold it from publication.89
Critics of a federal shield law say they believe newspaper policies are inadequate safeguards for national security. They point to existing protections in place for whistleblowers in the government and say that these individuals should not be guaranteed confidentiality by a shield law if they circumvent whistleblowing procedures and go instead to a member of the media. Goss wrote in his New York Times op-ed that “[T]hose who choose to bypass the [Intelligence Community Whistleblower Protection Act] and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk.”90
Critics have also said that a federal shield law could protect terrorists who pose as journalists in order to plan attacks. Mukasey’s and McConnell’s April 2, 2008 letter asserted that the definition of “covered person” in S. 2035 is “astonishingly broad” and could include “those linked to terrorists.” Despite exceptions in the bill for foreign powers, agents of foreign powers, terrorists and terrorist organizations as they are defined by various executive agencies and other federal legislation, Mukasey and McConnell say the bill does not go far enough. “All individuals and entities who ‘gather’ or ‘publish’ information about ‘matters of public interest’ but who are not technically designated terrorist organizations, foreign powers, or agents of a foreign power, will be entitled to the bill’s protections,” the letter said, “no matter how closely linked they may be to terrorists or other criminals.”91
House Judiciary Committee Chairman John Conyers (D-Mich.) has challenged the assertion that terrorists would be protected by a federal shield law. According to a June 15, 2007 San Francisco Chronicle story, Conyers said, “Who would believe that Hamas would be allowed in federal court to claim that they had the use of the shield to protect them?” said Conyers. “It’s totally absurd and without any basis whatsoever.”92
The complicated debate over a journalist’s privilege will continue amid American policymakers’ concerns about leaks of confidential information, national security, and the “War on Terror.” And if the intertwined histories of American journalism and law can be taken as any indication, coming to a satisfactory legal definition of journalism will not get any easier. Even after the passage of a federal shield law, the profound challenge of defining and balancing key values of American democracy would fall to federal judges: who will have to determine how to maintain the free flow of information while ensuring a fair trial process. Meanwhile, assurances of confidentiality will remain a core component of newsgathering as well as statecraft, and the risks and rewards for those involved in either endeavor at the highest levels will be significant.
1 H.R. 2102, 110th Cong. (2008) (enacted); S. 2035, 110th Cong. (2008).
2 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure section5426 716 (1980).
3 Branzburg v. Hayes, 408 U.S. 665, 725 (1972) (Stewart, J., dissenting).
4 Sam J. Ervin, Jr., In Pursuit of a Press Privilege, 11 Harv. J. on Legis. 233, 233 (1974).
5 Mary-Rose Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 Minn. L. Rev. 515, 533 (2007).
6 Act of Apr. 2, 1896, ch. 249, 1896 Md. Laws 437 (codified at Md. Code Ann., Cts. & Jud. Proc. section9-112 (LexisNexis 2002); see Papandrea, supra note 5, at 534.
7 Branzburg v. Hayes, 408 U.S. 665, 690 n.27 (1972) (citing then-existing state shield laws).
8 Id. at 709 (Powell, J., concurring).
9 Id. at 710 (Powell, J., concurring).
10 Id. at 725 (Stewart, J., dissenting).
11 See United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); LaRouche v. National Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983); Zerilli v. Smith, 656 F.2d 705, 711–15 (D.C. Cir. 1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596–97 (1st Cir. 1980); Riley v. City of Chester, 612 F.2d 708, 714–15 (3d Cir. 1979); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977); Farr v. Pitchess, 522 F.2d 464, 467–68 (9th Cir. 1975); Baker v. F.& F Investments, 470 F.2d 778, 785 (2d Cir. 1972); see also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 n.8 (8th Cir. 1997) (noting that the existence of a reporter’s privilege is an open question in the 8th Circuit). But see McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (rejecting a reporter’s privilege); In re Grand Jury Proceedings, 810 F.2d 580, 584 (6th Cir. 1987) (rejecting a reporter’s privilege in a case involving a subpoena to testify before a criminal grand jury).
12 Branzburg, 408 U.S. at 707.
13 Baker, 470 F.2d at 785 (2d Cir. 1972).
14 Baker, 470 F.2d at 785.
15 United States v. Burke, 700 F.2d 70, 77 (2nd Cir. 1983).
16 Burke, 700 F.2d at 77.
17 Branzburg v. Hayes, 408 U.S. 665, 740 (1972) (Stewart, J., dissenting).
18 Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981).
19 See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006); Lee v. Dept. of Justice, 413 F.3d 53 (D.C. Cir. 2005).
20 McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003).
21 Id. at 532.
22 Id. at 533.
23 Id. at 533.
24 See Jane E. Kirtley, Will the Demise of the Reporter’s Privilege Mean the End of Investigative Reporting and Should Judges Care if it Does?, 32 Ohio N.U.L. Rev. 519 (2006) (citing examples of judges who have dismissed the constitutional privilege); RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 Minn. L. Rev. (forthcoming 2008) available at http://ssrn.com/abstract=1125500; see also Kevin Rector, A Flurry of Subpoenas, Amer. Journalism Rev. (Apr./May 2008) available at http://www.ajr.org/Article.asp?id=4511 (discussing the Jones study).
25 See Kirtley, supra note 24, at 520–21; Lucy A. Dalglish & Casey Murray, “Dejà Vu All Over Again: How a Generation of Gains in Federal Reporter’s Privilege Law Is Being Reversed, 29 U. Ark. Little Rock L. Rev. 13, 36 (2006).
26 Pub L. No. 93-595, 88 Stat. 1926 (1975); Fed. R. Evid. 501.
27 Compare Fed. R. Evid. 501 (2006) with Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 230–61 (1972). The committee recommended that nine specific privileges be adopted. A journalist/source privilege was not among them.
28 Jaffee v. Redmond, 518 U.S. 1 (1996).
29 Id. at 11.
30 Id. at 12.
31 See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006); New York Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y. 2005), vacated by 459 F.3d 160 (2d Cir. 2006).
32 In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006).
33 Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979).
34 See, e.g., United States v. Criden, 633 F.2d 346 (1980).
35 See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006); New York Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y. 2005), vacated by 459 F.3d 160 (2d Cir. 2006).
36 As of May 2008 they include Alabama (Ala. Code section 12-21-142 (2004)); Alaska (Alaska Stat. sectionsection 09.25.300 to.390 (2004)); Arizona (Ariz. Rev. Stat. Ann. section 12-2237 (2004)); Arkansas (Ark. Code Ann. section 16-85-510 (West 2003 & Supp. 2004)); California (Cal. Const. art. I, section 2(b); Cal. Evid. Code section 1070 (West 2005)); Colorado (Colo. Rev. Stat. Ann. sectionsection 13-90-119, 24-72.5-101 to -106 (West 2004)); Connecticut (Conn. Gen. Stat. Ann. 52-146t (West 2006)), Delaware (Del. Code Ann. tit. 10, sectionsection 4320 to 4326 (2004)); the District of Columbia (D.C. Code sectionsection 16-4701 to 4704 (2004)); Florida (Fla. Stat. Ann. section 90.5015 (West 2004)); Georgia (Ga. Code Ann. section 24-9-30 (2004)); Illinois (735 Ill. Comp. Stat. Ann. 5/8-901 to -909 (LexisNexis 2004)); Indiana (Ind. Code Ann. sectionsection 34-46-4-1 to -2 (West 2004)); Kentucky (Ky. Rev. Stat. Ann. section 421.100 (West 2004)); Louisiana (La. Rev. Stat. Ann. sectionsection 45:1451 to 1459 (2004)); Maine (Maine Rev. Stat. Ann. tit. 16, section 61 (2008)); Maryland (Md. Code Ann., Cts & Jud. Proc. section 9-112 (2004)); Michigan (Mich. Comp. Laws Ann. section 767.5a (West 2004)); Minnesota (Minn. Stat. sectionsection 595.021 to .025 (2005)); Montana (Mont. Code Ann. sectionsection 26-1-901 to -903 (2003)); Nebraska (Neb. Rev. Stat. sectionsection 20-144 to -147 (2004)); Nevada (Nev. Rev. Stat. 49.275, 49.385 (2005)); New Jersey (N.J. Stat. Ann. sectionsection 2A:84A-21 to 21.13 (West 2004)); New Mexico (N.M. Stat. Ann. section 38-6-7 (West 2004)); New York (N.Y. Civ. Rights Law section 79-h (Consol. 2004)); North Carolina (N.C. Gen. Stat. section 8-53.11 (2000)); North Dakota (N.D. Cent. Code section 31-01-06.2 (2003)); Ohio (Ohio Rev. Code Ann. sectionsection 2739.04, 2739.12 (West 2004)); Oklahoma (Okla. Stat. tit. 12, section 2506 (2004)); Oregon (Or. Rev. Stat. sectionsection 44.510 to .540 (2001); Pennsylvania (42 Pa. Cons. Stat. Ann. section 5942 (West 2000); Rhode Island (R.I. Gen. Laws sectionsection 9-19.1-1 to .1-3 (2004)); South Carolina (S.C. Code Ann. section 19-11-100 (Law. Co-op. 2004)); Tennessee (Tenn. Code Ann. section 24-1-208 (West’s 2004)) and Washington (Wash. Rev. Code Ann. section 5.68.010 (West 2008)). Hawaii’s state legislature passed a shield law on April 29, 2008. The bill, HB 2557, had yet to be signed by the Governor at press time.
37 Alaska Stat. sectionsection 09.25.300 to .390 (2004).
38 Maine Stat. Ann. tit. 16, section 61 (2008).
39 See Monica Dias, Leggett’s Case Revives Talk about Shield Law, News Media & L., Winter 2002.
40 28 C.F.R. section 50.10.
41 See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1152 (D.C. Cir. 2006).
42 See Jennifer Elrod, Protecting Journalists from Compelled Disclosure: A Proposal for a Federal Statute, 7 N.Y.U.J. Legis. & Pub. Pol’y 115, 154–159 (2004).
43 See, e.g., John D. Castiglione, A Structuralist Critique of the Journalist’s Privilege, 23 J.L. & Pol. 115 (2007); Sean W. Kelly, Note, Black and White and Read All Over: Press Protection after Branzburg, 57 Duke L.J. 199 (2007); Noah Goldstein, Current Developments, An International Assessment of Journalist Privileges and Source Confidentiality, 14 New Eng. J. Int’l & Comp. L. Ann. 103 (2007); Geoffrey R. Stone, Why We Need a Federal Reporter’s Privilege, 34 Hofstra L. Rev.39, 40–41, 48–50 (2005).
44 See, e.g., Goldstein, supra note 43, at 129; Jaime M. Porter, Note, Not Just “Every Man”: Revisiting the Journalist’s Privilege Against Compelled Disclosure of Confidential Sources, 82 Ind. L.J. 549, 560 (2007); see also Castiglione, supra note 43, at 128–29 (noting the “compelling” argument that the “circuit split is untenable” despite taking a critical stance toward shield laws generally).
45 Stone, supra note 43, at 45.
46 Stone, supra note 43, at 51–55.
47 See Stone, supra note 43, at 40–41.
48 Stone also discussed the journalist’s privilege in the 2006 Silha Lecture. See “Geoffrey Stone Predicts First Amendment will Protect Journalists from Prosecution at 21st Annual Silha Lecture” in the Fall 2006 issue of the Silha Bulletin.
49 Jones, supra note 24.
50 See Reporters Committee for Freedom of the Press, Special Report: Shields and Subpoenas, available at http://www.rcfp.org/shields_and_subpoenas.html.
51 Dalglish & Murray, supra note 25, at 36.
52 Dalglish & Murray, supra note 25, at 42.
53 See Walter Pincus, Commentary, Walter Pincus Sees Shield Law As “a Bad Misstep,” Nieman Watchdog, Dec. 3, 2007, available at http://www.niemanwatchdog.org/index.cfm?fuseaction=background.view&backgroundid=218.
54 Judith Miller agreed to testify about her conversations with I. Lewis “Scooter” Libby after spending 85 days in jail only because Libby personally released her from her promise of confidentiality. “I am leaving jail today because my source has now voluntarily and personally released me from my promise of confidentiality regarding our conversations relating to the Wilson-Plame matter,” Miller said. See Susan Schmidt & Jim VandeHei, N.Y. Times Reporter Released From Jail, Wash. Post, Sept. 30, 2005, at A1.
55 See e.g., Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984); U.S. v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); Small v. UPI, 1989 U.S. Dist. Lexis 12459 (S.D.N.Y. 1989); Los Angeles Memorial Coliseum Comm’n v. NFL, 89 F.R.D. 489 (C.D. Cal. 1981); New Jersey v. Boiardo, 416 A.2d 793 (N.J. 1980); Sands v. News America Publishers, 560 N.Y.S.2d 416 (N.Y. App. Div. 1990); State v. Ventura, 101 Ohio Misc. 2d 15, 720 N.E.2d 1024 (Ct. Common Pleas 1999).
56 See Nathan Swinton, Privileging a Privilege: Should the Reporter’s Privilege Enjoy the Same Respect as the Attorney-Client Privilege?, 19 Geo. J. Legal Ethics 979 (2006). But see Cohen v. Cowles Media, 501 U.S. 663 (1991).
57 See In re Farber, 394 A.2d 330, 337–38 (N.J. 1978).
59 Hearing Before S. Comm. on the Judiciary, 109th Cong. 8 (2006)(statement of Paul J. McNulty, Deputy Attorney General, Department of Justice).
60 Branzburg, 408 U.S. at 703.
61 Blumenthal v. Drudge, 992 F.Supp. 44, 48 n.7 (D.D.C. 1998), quoting Bruce W. Sanford and Michael J. Lorenger, Teaching An Old Dog New Tricks: The First Amendment In An Online World, 28 Conn. L. Rev. 1137, 1139–43 (1996).
62 See supra note 36.
63 Tenn. Code Ann. section 24-1-208(a) (West 2004).
64 Minn. Stat. sectionsection 595.021 to .025 (2005).
65 Ala. Code section 12-21-142 (LexisNexis 2004).
66 See Ohio Rev. Code Ann. sectionsection 2739.04, 2739.12 (West 2004).
67 Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987).
68 Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10 Cir.1977). More recently, in Wisconsin in 2007, a state circuit court recognized a limited common law journalists’ privilege for a documentary filmmaker. The Silha Center submitted a friend of the court brief in that case. See “Wisconsin Circuit Court Rules Journalist’s Privilege Protects Documentary Filmmaker’s Nonconfidential Sources” in the Winter 2007 issue of the Silha Bulletin. The Silha Center’s brief can be found online at http://www.silha.umn.edu/Resource%20Documents/STATE%20OF%20WISCONSIN.pdf.
69 Shoen v. Shoen, 5 F.3d 1289 (9th Circ. 1993).
70 Id. at 1293.
71 See Clay Calvert, And You Call Yourself a Journalist?: Wrestling with a Definition of ‘Journalist’ in the Law, 103 Dick. L. Rev. 411 (1999) for an early example.
72 Linda L. Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist’s Privilege in an Infinite Universe of Publication, 39 Hous. L. Rev. 1371 (2003) at 1411. See