Legal Affairs

Current Issue


printer friendly
email this article

space space space
Debate Club

Do Journalists Need a Better Shield?

Paul McMasters and Geoffrey R. Stone debate.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

This Wednesday, Time magazine journalist Matthew Cooper and New York Times reporter Judith Miller go to trial in Washington, D.C. for refusing to reveal confidential sources. They are the first of several journalists who could face lengthy prison sentences because of charges related to the July 2003 revelation that Valerie Plame was a covert operative of the CIA.

Similar cases abound. Last month a Rhode Island reporter was found guilty of contempt for refusing to reveal a source and the invasion-of-privacy case of Los Alamos scientist Wen Ho Lee may bring other journalists to trial. While 31 states and the District of Columbia have shield laws designed to protect journalists from being forced to reveal their sources, no such federal law exists.

Do journalists need more protection from prosecution?

Paul McMasters is the First Amendment Ombudsman at the First Amendment Center and writes a column distributed to 200 newspapers. Geoffrey R. Stone is Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago and author of Perilous Times: Free Speech in Wartime.

McMasters: 12/6/04, 11:55 AM
I have always thought that the best protection for journalists who needed to protect their confidential sources was the First Amendment, common law, and common sense. And if those didn't work, the Justice Department's own guidelines would kick in.

I am no longer confident, however, that those are sufficient to provide balance when the inevitable conflicts arise between journalists doing their jobs and prosecutors doing their jobs. In the last couple of years, federal prosecutors have seemed far too willing to attempt coercing journalists into becoming part of their investigative teams. Compounding the problem: Courts have seemed far too dismissive of the public's stake in the press's ability to resist these efforts.

On Wednesday, reporters for Time magazine and The New York Times will find out whether they will be going to jail for up to 18 months. Sentencing is set for Thursday for a television correspondent in Providence, R.I. who may go to jail for up to six months. More than a dozen other journalists face similar fates, all for refusing to give up their sources to federal prosecutors.

The sources are not the only things sought in these forays into reporting practices and newsroom procedures. Federal officials also have gone after telephone records and reporters' notes and reportedly have tried to enlist journalists as informants, get certain information from being reported and forced reporters off of stories they have covered for months or years.

The uneasy balance between reporters and federal officials began to tip as far back as 2001 when Houston free-lance writer Vanessa Leggett was sent off to prison for not handing over interview tapes to federal officials. Not long after, the Justice Department secretly subpoenaed the telephone records of Associated Press reporter John Solomon; officials wanted to know who Solomon was talking to in his reporting on then-U.S. Senator Robert Torricelli, a New Jersey Democrat. A little more than a year later, Solomon, this time working on an investigative project about the war on terrorism, again was targeted by federal officials, who intercepted and held for several weeks a package containing an unclassified FBI report mailed to him from the Philippines by a fellow A.P. correspondent.

Then came the deluge. Now we have a number of criminal and civil investigations ensnaring journalists, forcing them and the news organizations they work for to incur huge legal fees and fines. More importantly, these acts have seriously compromised the ability of the press to inform the public about urgent matters of public policy and government actions.

All of this unfolds in a governmental environment that prizes secrecy and information control far more than the public's right to know. The classification of government information reaches historic records each year. The Freedom of Information Act is being interpreted much more narrowly. Massive amounts of unclassified information have been labeled "sensitive," thus putting such material beyond the reach of the public and press. More than four million government officials—local, state, and federal—will be subject to signing non-disclosure agreements, violation of which comes with harsh penalties, including jail time.

Under such circumstances, the press's ability to protect sources becomes even more vital than ever. That's why there must be a vigorous and sustained dialogue about whether a federal shield law for reporters is needed to restore some balance to this dangerously out-of-kilter dynamic between the press and prosecutors.

Perhaps the discussion and debate alone will temper Justice's aggressiveness. More importantly, it should help the public to understand that this is first and foremost an issue of free speech in general and dissent in particular. It is about the ability of those with information vital to the public and inconvenient to some government officials to get that word to the public through the press. Then, it should become apparent that a federal shield law is not a special privilege for journalists but a special protection for the public.

Stone: 12/6/04, 05:55 PM
I certainly agree that this is an important issue. But it may be useful to put it into its larger context. In many of the current disputes, the press has claimed the mantle of the First Amendment in arguing that reporters have a constitutional right not to disclose "confidential" information to a grand jury. The essence of the argument is as follows: (1) The press has a First Amendment right (and responsibility) to inform the public. (2) In order to gather information, reporters often have to promise their sources confidentiality. (3) If reporters are compelled to disclose the identity of their sources, the sources will dry up. (4) Therefore, for the government to require a reporter to reveal a source in the course of a grand jury investigation violates the First Amendment.

This is all very logical. Nevertheless, in 1972 the Supreme Court rejected precisely this argument in a closely-divided decision. In Branzburg v. Hayes, the majority of the Court conceded that grand jury subpoenas could plausibly have some impact on the willingness of sources to provide information to the press, but it concluded that there was no proof that the effect of such subpoenas would be significant. Moreover, the majority noted that if it recognized a First Amendment privilege for journalists, it would then have to decide as a matter of constitutional law who is and who is not a "journalist." Could this new privilege be claimed by a reporter for a school newspaper? By a blogger? By a person writing a book, even if she's never written one before? The majority explained that it would be very harmful for the Court to undertake such an inquiry, because it would be the equivalent of "licensing" the press, something that has always been anathema to the First Amendment.

In light of the decision in Branzburg, why does the press continue to howl that grand jury subpoenas of reporters violate the First Amendment? There are two reasons (apart from the obvious one that it sounds good). First, Justice Powell wrote a stunningly opaque concurring opinion in Branzburg that seemed to leave some wiggle room for a very narrowly-drawn constitutional privilege. Second, any citizen is always free to argue that a Supreme Court decision is wrong and should be overruled. In light of the recent rash of grand jury subpoenas to reporters, perhaps the current Court will overrule Branzburg (though that seems unlikely).

But there is a more intriguing problem here, and it goes to the question of journalistic integrity. After Branzburg, many states enacted statutory shield laws that provide a privilege for journalists. Indeed, 31 states now have such laws, in one form or another. But 19 states and the federal government have not enacted such laws.

Suppose you are a journalist in Washington, D.C., and you know that there is (under current constitutional law) no First Amendment privilege and no statutory privilege governing your conduct. A source tells you "I won't reveal the information you want unless you promise me confidentiality." What should you do? There are at least three options: (1) You can try to persuade the source to disclose the information without a promise of confidentiality. If she refuses, you can close up shop and go home. (2) You can promise confidentiality "to the extent allowed by law" (perhaps hoping that, if push comes to shove, you can get the Court to overrule Branzburg). (3) You can promise confidentiality.

The nub of the problem at the moment is that too many reporters are arrogantly taking it upon themselves to choose option (3). By so doing, they are either lying to the source or placing themselves above the law. Neither is acceptable or ethical. So, Paul, I'd like to focus for the moment on that question: Is it ethical for a journalist to promise a source confidentiality when the only way she can keep that promise is by violating the law and going to jail?

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

McMasters: 12/7/04, 12:21 PM
You are right, Geoffrey. There is no doubt that some journalists grant confidentiality all too casually. But most news organizations have procedures in place to make sure that there is a thorough discussion among reporters and editors about whether (1) the information is of significant public interest, (2) there are any other ways to get the information, and (3) going with the confidential sources is worth the risk. Further, there is no way of knowing at the time the confidentiality is granted that a question of legality will arise; in fact, that is rare. That is why the present situation warrants our attention.

But, to be fair, your question provokes another: Are federal prosecutors these days too casually and too quickly making the decision to use their power to fine and jail to get journalists to compromise their ethics?

As for Branzburg v. Hayes, I don't believe the majority opinion is immutable to interpretation more favorable to the First Amendment argument; in fact, a federal judge in good conscience can find a way to recognize the First Amendment dimensions of this conflict. U.S. District Judge Charles Ritchey set that remarkable example less than two years after Branzburg came down by quashing subpoenas seeking the identity of "Deep Throat," the confidential source that Woodward and Bernstein relied on for investigative reporting into Watergate that led to the resignation of President Nixon.

As for the press claiming the mantle of the First Amendment, I think it is important to keep in mind that there are First Amendment rights involved in this matter beyond those of journalists, namely the free speech and dissent rights of government employees (or private sector employees). Anonymous speech, especially about political matters, is a hallmark of First Amendment jurisprudence. Finally, the First Amendment rights of citizens who cannot engage in informed discourse without a press free to convey important information from confidential sources should be paramount when judges sit down to sort out the conflicts between prosecutors seeking sources and journalists protecting them.

Surely there is a better way out of this quagmire than a choice between a parade of journalists going to federal prison or citizens contenting themselves with a daily portion of news that comes only from official sources.

Stone: 12/7/04, 05:25 PM
Certainly, the citizens of a self-governing society need a free press to help inform them about public affairs. For this reason, the First Amendment grants the press a broad right to publish almost anything it chooses, free of government restraint.

But the issue of newsgathering is trickier. Suppose a reporter thinks a congressman has taken a bribe. May the reporter break into the congressman's home and rummage through his desk to try to find evidence of the bribe? May the reporter tap the congressman's telephone? The answer, of course, is "no." Even though reporters would be able to do a better job of informing the public if they were allowed to commit burglary and violate laws against wiretapping, the law ordinarily does not grant them exemptions from such laws. Thus, although the press would be free to publish information accusing the congressman of bribery, and although that information may be important to public discourse, the press does not have a right to commit crimes in order to get the information.

The issue is similar in the context of the journalist-source privilege. In general, all citizens have a legal obligation to answer questions posed to them by a grand jury. If a grand jury is investigating an alleged bribe of a congressman, friends, neighbors, employees, and family members of the congressman can be called before the grand jury and compelled to provide relevant information. Journalists, however, demand a special exemption from this obligation. They argue that they need this exemption because if they are compelled to testify they will have a harder time gathering information for the public. Surely, to some extent, this is so. But is it really different from the burglary and wiretap examples?

Actually, Paul, I strongly support the enactment of a federal statute that would create a journalist-source privilege. We recognize many privileges in the law. The most common is the attorney-client privilege. Many states also recognize privileges of one sort or another for doctor-patient, priest-penitent, husband-wife, psychotherapist-patient, and so on. The purpose of these privileges is to encourage clients, patients, penitents, and spouses to speak openly with lawyers, doctors, psychotherapists, priests, and spouses.

When such privileges exist, a grand jury or court of law ordinarily cannot compel either party to the conversation to disclose its contents.

The underlying judgment is that preservation of the confidentiality of such relationships is more important to society than making the contents of the communication available to a court of law, even if the consequences is that a guilty person goes free or an innocent person goes to jail. If we're willing to do this for these other relationships, why not for the journalist-source relationship as well? I take it, then, that we agree that such a privilege would be salutary. The next question, I suppose, is when it should apply.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

McMasters: 12/8/04, 11:23 AM
Journalists should not have an unfettered right to commit crimes in the pursuit of a story, but I don't think we can compare the granting of confidentiality to a source generally, or even specifically, to a burglary or wiretap. I certainly agree that journalists are not above the laws of general applicability, nor should they be. That's why I don't know personally of any journalists or their advocates who are demanding an absolute privilege. I do think most would like to see recognition on the part of government officials, judges, and the public that journalists must have some leeway when reporting on matters of public concern that in some ways parallel the privilege for the relationships that you cited.

Like you, Geoffrey, I have come to the conclusion that there may be no way to achieve that leeway without state and federal shield laws for reporters. The drafting of such a federal law is most challenging, of course, but I think more than three decades of experience with state shield laws demonstrates that it is not impossible. Indeed that experience could be quite instructive. The public debate that the proposal of such a law provokes also may well serve to ameliorate the situation we find ourselves in right now.

At the moment—with an appeals hearing today on the possible jailing of reporters Judith Miller and Matt Cooper, and sentencing set for Jim Taricani tomorrow—most discussion is case-specific, focusing on tracking down and plugging government leaks. What should give us all pause is how many stories may have been abandoned, or how many sources may have been given up, by news organizations without the resources or the will to fight federal prosecutors. Even if there were only one instance of that, it would be a significant public loss. But I think we can safely assume that there are more.

Stone: 12/8/04, 05:46 PM
I don't see why you're more concerned about the loss of information caused by the absence of a source-journalist privilege than by the absence of a journalist privilege to commit burglary or to wiretap. If there's a "significant public loss" when a source doesn't disclose information to a reporter because she's not certain the reporter will be able to keep her confidence, then there's also a "significant public loss" when a reporter can't wiretap a newsworthy telephone call or commit a burglary to obtain a newsworthy document. Is it that giving reporters the power to wiretap or burgle harms privacy, whereas giving reporters the power to withhold information from a grand jury merely lets guilty people go free and causes innocent people go to jail?

Be that as it may, we agree that there should be at least a statutory privilege for confidential source-journalist communications. You say it shouldn't be an "absolute" privilege. I'm not quite sure what that means. Those who favor a "non-absolute" privilege in this context usually mean that the grand jury can demand the information if it can show that it is relevant to the investigation, there is no other way the grand jury can obtain it, and the information is of great importance to the enforcement of the law. Those who favor an "absolute" privilege mean that the grand jury cannot compel the reporter to disclose the information even if those conditions exist. Which of these versions, if either, do you advocate?

You mention the Judith Miller and Matt Cooper cases. These are interesting. The judge found that all of the conditions I mentioned above were satisfied. Do you think, Paul, that Miller and Cooper should be able to refuse to disclose the information even in light of those findings?

Even more intriguing to me is the arguable inapplicability of even an "absolute" privilege in this situation. The purpose of the source-journalist privilege is not to protect the journalist, but to protect the source. It is the source who is being encouraged to rely on the confidentiality of the communication. Thus, just as in the attorney-client, doctor-patient, and priest-penitent privileges, the source-journalist privilege "belongs" to the source. If the source doesn't care about confidentiality, the reporter has no right to insist upon it.

Moreover, because the privilege is designed to encourage the source to disclose the information to the reporter, we have to ask whether on the facts of the Miller and Cooper cases the public interest actually supports encouraging White House officials to disclose the identity of a secret CIA operative in order to make political hay. How can that be, given the fact that the disclosure by such officials itself is a crime? Doesn't that seem self-contradictory?

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

McMasters: 12/9/04, 09:05 AM
Let's start with the presumption of criminality, in motive and/or action, on the part of journalists who are approached by confidential sources or who decline to divulge such a source in a grand jury proceeding.

First, the vast majority of confidential sources are violating no laws by going to the press. Second, even those who act contrary to the law in leaking information are very seldom run to the ground and clapped in irons by authorities, so why would it follow that journalists (1) be required to determine whether a law is being broken before talking to a source and (2) be marched off to jail if unable or unwilling to make that determination? This goes even for most grand jury leaks and leaks of classified materials. The lion's share of this fraction of instances, in fact, most usually is loudly decried, then forgotten.

In the somewhat rarified atmosphere of the nation's capital, especially, this sort of process has become what passes for democracy in action. Official channels of communication, whether in the administration or in the Congress, have become so managed, manipulated, self-serving, or ossified that leaks, authorized as well as unauthorized, have become the lingua franca. A growing and pervasive governmental secrecy aggravates this condition.

This brings us to the case involving Matt Cooper and Judith Miller. Most assuredly I do not believe that they should go to jail. I believe, rather, that they and their employers should never have been hauled into court to spend time, resources, and money on defending themselves from a sideshow staged by the special prosecutor.

Cooper did not expose the name of the CIA operative; he only wrote about it after columnist Robert Novak did. And Miller not only did not expose the name of the operative, she did not even write about the situation.

Neither did Cooper refuse to cooperate with the special prosecutor. He agreed to meet with Patrick Fitzgerald and answer questions within the constraints of his professional ethics. Rather than appreciating that, Fitzgerald used his answers to fashion yet another subpoena.

As for whether the court was on firm ground in finding that the prosecutor had met all the conditions required by his professional ethics, we have to take the judge's word for that because the prosecutor was allowed to file secret submissions, not even available to defense counsel.

As for sources waiving confidentiality, how can such waivers be voluntary? Even if they are, that does not relieve the journalists of their pledges of confidentiality, which are made not just to the sources but to the profession.

Finally, there is a very real possibility that the sources of this leak will never be determined. And even if they were, the chances are next to nil that they would be convicted under the very narrow conditions set down by the law allegedly violated. Thus we confront the irony of as many as eight journalists, perhaps more, who did not solicit the information in the first place, did not write about it until a commentator wrote about it, and yet may go to jail while the targets of the special prosecutor's long and expensive investigation go free.

Stone: 12/9/04, 04:11 PM
It seems we're leaping from a situation where no source-journalist privilege exists under federal law to fashioning one that far exceeds any of other privilege in scope. Because these privileges exist to encourage clients, patients, penitents, and (perhaps) sources to be forthright in their discussions with lawyers, doctors, priests, and (perhaps) journalists, the privileges apply only insofar as the communication actually promotes the interests the privilege is designed to serve.

If a client reveals information to an attorney, not to get legal advice, but to learn how to commit a crime, the attorney-client privilege does not apply. If a patient discloses information to a doctor, not to get medical treatment, but to figure out how to defraud an insurance company, the doctor-patient privilege does not apply. In such circumstances, the attorney or the doctor can be compelled to disclose the "confidential" communication, even if he promised confidentiality, because the client or patient has forfeited any right to the privilege.

Even if we accept a broad source-journalist privilege, the Valerie Plame situation falls squarely within this principle. In this instance, the source was not engaged in whistle-blowing: he was not disclosing that a congressman took a bribe, or that the Vice President lied about his dealings with the energy companies, or that the President knew there were no weapons of mass destruction. Those would all be appropriate circumstances for the protection of a source-journalist privilege because the disclosure would have served a legitimate public interest. But in the Valerie Plame situation, the source was outing a confidential CIA agent (and thus damaging the national security and jeopardizing Plame's safety) in order to serve partisan political interests. There is no legitimate public interest in promoting this sort of communication, and thus no reason to give the source the protection of the privilege.

In these circumstances, even under the broadest version of the source-journalist privilege, Judith Miller and Matt Cooper had no right or power to give this source an enforceable guarantee of confidentiality, and they have no "professional" interest in honoring a promise of confidentiality that was induced by the source in order to enable him to use them to commit a federal crime. This is no different from the client who discloses information to a lawyer in order to commit a crime or the patient who discloses information to a doctor in order to defraud the insurance company. The privilege doesn't protect such communication, whether or not the doctor or attorney misguidedly promised confidentiality.

And, of course, it doesn't matter at all that Miller didn't print the story. This has nothing to do with publishing the information. Rather, Paul, it has to do with determining who within the White House (if anyone) violated federal law in an especially crude and egregious manner. When this story first broke, the press was (rightly) all over the government to investigate this scandal aggressively. Now, suddenly, it's much ado about nothing. But it's not much ado about nothing. What's at stake here is a serious instance of illegal conduct for purely political purposes in which the press was manipulated by White House officials at the height of a presidential campaign. One would think the press might care about getting to the bottom of this. How do they expect the government to solve such a crime without asking the reporters who committed the leak?

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

McMasters: 12/10/04, 01:17 PM
You make very helpful points about most evidentiary privilege relationships and their purposes, Geoffrey. But those differ somewhat from source-journalist relationships in the sense that they serve a much narrower interest, almost exclusively between the two parties, and that any public interest served is not nearly so direct, immediate or publicly useful as the source-journalist privilege.

The public interest argument in the Plame leak instance (if one stipulates that retaliation and partisan politics were the motives of the leakers) is a difficult one to make but it must be made. There are valid reasons for giving reporters latitude in protecting the sources.

For example, it assures that other sources, with better motives and real abuse of power to reveal, will not be afraid to come forward, and that the information made available may serve a greater good than the punishment of journalists who may have intentionally put themselves in the service of someone with bad motives.

Which brings us to the Catch 22 in all of this. The insistence that protecting confidential sources is a criminal act for which journalists should not be "above the law" rises out of the functional equivalent of an ex post facto kind of law. In other words, a journalist committed no crime when receiving information from a source and promising confidentiality. But unfortunately judges can elect to treat that journalist like a criminal when a prosecutor issues a subpoena that he knows the journalist has no choice but to resist.

And what unfolded yesterday in Providence brings into sharp relief just how abusive and wrong-headed this process can be when there is no recognition of a journalists' need to protect confidential sources. U.S. District Judge Ernest C. Torres sentenced television reporter Jim Taricani to six months of confinement at home for his refusal to name the person who gave him a surveillance tape showing a public official taking a bribe. The source, by the way, already had come forward.

The sentence could have been worse. But not much. Taricani, a heart-transplant survivor who requires special medical care, could have been sent to a nearby federal prison, where two of the people convicted in the official corruption case he had been covering are incarcerated. But the judge laid down harsh restrictions "designed to mirror as closely as possible the conditions in prison."

And during an hour-long harangue from the bench, Judge Torres castigated those who raised the First Amendment as a concern in the case. Ironically, he sentenced Taricani to silence. The journalist can not work as a journalist, can not speak about his sentence, can not make media appearances and can not even use the Internet.

Here we have a case where no grand jury proceedings were violated, where no national security was breached, where no crime was committed by the journalist receiving leaked material and where the source of the leak is now known. But in the eyes of today's law, Jim Taricani is a convicted criminal, all for doing his professional best to bring information of real significance to the public. And the First Amendment, common law, and common sense could not halt this affront to the principles of an open society.

Now, with nearly a dozen other American journalists facing the same sort of fate, this pre-eminent democracy plunges further on the index of world press freedom and joins the relative few nations that send journalists to prison when they find them or their reporting inconvenient.

What better argument can there be for a federal law that gives journalists more protection in protecting their sources?

Stone: 12/10/04, 05:12 PM
It's important to see the internal tensions that are sometimes present in these source-journalist situations. Consider two variations. In situation (1) the journalist receives information from a person who has a constitutional right to give the information to the journalist. In situation (2) the journalist receives information from a person who has no constitutional right to give the information to the journalist. Situation (1) would exist, for example, when a government employee reveals to a journalist that a congressman has accepted a bribe. In this situation, the source could not constitutionally be punished for revealing the information, and the privilege should clearly apply.

Situation (2) would exist in both the Miller case and Taricani cases. In both of these cases, it's clear that the source has no constitutional right to disclose the information. To the contrary, in both of these situations the source clearly could be criminally punished for violating constitutionally permissible rules of confidentiality. That being so, why should they be able to claim a source-journalist privilege? You argue, Paul, that the privilege is necessary because the information may be of public interest and we don't want to deter the source from disclosing the information. But that makes no sense unless we are prepared to give the source himself immunity from prosecution. If we're willing to prosecute the source for an unlawful leak, how can we then say that the public interest in the information justifies giving him the benefit of the privilege? I don't quite see how we can have it both ways. (This is quite separate, by the way, from the question whether the press may publish the information.)

Moreover, it overstates the case, Paul, to say that denial or limitation of the source-journalist privilege sends journalists to prison when the government finds "their reporting inconvenient." If a reporter goes to prison in these circumstances, it is because he has arrogantly decided to play martyr. It is undoubtedly great drama. But where does a reporter get off insisting that he is above the law, the Congress, the Supreme Court, and the Constitution?

Let me be clear. I support a source-journalist privilege. But unless and until that privilege is recognized, journalists must comply with the law no less than anyone else. If a journalist refuses to comply with a lawful and constitutional court order, he is no more entitled to our respect than anyone else who places himself above the law. There is a time and a place for "civil disobedience." In my view, civil disobedience is appropriate when there is a legitimate case to be made that the legal and judicial systems are in some fundamental sense dysfunctional. In this situation, the only argument the journalist can make is that lawmakers and judges don't agree with him. That's not a good enough justification for taking the law into one's own hands.

You suggest that journalists are different because they serve a "greater good." Terrorists also believe that they serve a "greater good." But we do not permit them to decide this for themselves. Of course, journalists serve a "greater good." And the law and the Constitution provide for that. But in our constitutional system they are not the ones who get to decide what their rights are. That's why we have courts, legislatures, and a Constitution.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

printer friendly email this article letter to the editor
space space space space
Contact Us