Thirty-five years ago this spring, 30 aggravated New York and Washington journalists gathered at the Georgetown Law school library to form a “reporters committee” to stand up for the rights of reporters to protect their sources. Former CBS and Associated Press reporter Murray Fromson said the meeting was called because “journalists were under attack.”
The attack was serious. The U.S. Justice Department under Attorney General John Mitchell had launched a campaign to turn some of the nation’s best reporters into investigators for the government. Fromson and the late investigative reporter J. Anthony Lukas were joined at the first meeting of what would become the Reporters Committee for Freedom of the Press by prominent journalists Jack Nelson, Fred Graham, Mike Wallace, Ben Bradlee, Eileen Shanahan, and others.
American journalists have long believed that ethical reporters protect confidential sources, and in the 1970’s that principle was catching on among journalists overseas. Most journalists assumed that the First Amendment provided reporters a privilege against being subpoenaed to testify before a court. But the Nixon White House aggressively sought grand jury testimony from reporters who had written stories about two major issues of the day: the emergence of the Black Panthers as a political force and the rise of the drug culture. Three cases in which journalists refused to testify eventually made their way to the U.S. Supreme Court in a consolidated case called Branzburg v. Hayes.
The Branzburg Decision
In 1972, after the Reporters Committee had been operating from the desks of steering committee volunteers for two years, the Supreme Court addressed the issue for the first time. The Branzburg decision was one of those exasperating 4-1-4 decisions that can only lead to confusion and creative lawyering. Four justices said there was not a First Amendment privilege, four said there was, and the final justice, Lewis Powell, Jr., said he could foresee situations where there might be a privilege, but not in the case before them in which journalists were being asked to testify before a grand jury.
As usual, journalists and their lawyers looked for any sign of hope in the decision. They found two possible bright spots. First, the court said that while there was not a First Amendment- based privilege in these cases, states and Congress were free to pass statutes (i.e. “shield laws”) that provide such a privilege. Second, enterprising media lawyers reasoned that since Powell’s vote was needed to come up with a majority, Powell’s concurring opinion saying such a privilege might exist in some circumstances should essentially be treated as the guiding law in these cases.
While a handful of states had shield laws before 1972, the next few years saw intense legislative activity on the state level. Today, 31 states and the District of Columbia have shield laws that provide a dizzying array of protection from compelled testimony.
The dusty file cabinets at the Reporters Committee, which today has a full-time professional staff of 11, contain dozens of case files from the 1970’s in which journalists dealt with the aftermath of Branzburg by refusing to testify in a variety of court cases. A few reporters went to jail. But some cases were resolved by convincing state and local courts to follow the Powell concurrence by requiring that, before a journalist could be compelled to testify, the party seeking the information must demonstrate there is a compelling need for the information and that alternative sources of the information have been exhausted.
Attorney Floyd Abrams, center, with New York Times reporter Judith Miller and Time magazine reporter Matt Cooper outside federal court in Washington, D.C., in December 2004. Photo by Susan Walsh/The Associated Press.
Congress made numerous attempts to address the issue. From 1973 to 1978, 99 shield laws were introduced. None made it very far, and the media were as responsible for these failures as Congress. Journalists simply could not agree on two things: the need for a statute and, if there was a statute, should it be “absolute” (that is, allow journalists to protect confidential sources in all circumstances) or should it be “qualified” by allowing those who seek the testimony to succeed if they meet Powell’s multipart test.
The antishield law contingent believes the First Amendment should be enough. Taking this issue to Congress, they argue, gives government the opportunity to decide who is a journalist, and thus it is the first step toward “licensing” the media in this country.
Those who support shield laws fall into two camps: supporters who will back absolute protection for sources or nothing at all and those who are willing to accept a qualified privilege. In the past, failure to agree upon a federal shield law strategy has doomed any effort to create a statutory privilege.
Although a federal shield law was not adopted in the 1970’s, the U.S. Department of Justice issued guidelines— largely successful—for when U.S. attorneys may subpoena reporters. The guidelines largely paralleled Justice Powell’s concurrence in Branzburg. When an attorney general conscientiously followed the guidelines, the number of subpoenas on reporters in federal criminal cases tended to be low.
For 30 years, this mixed bag of federal protections only occasionally failed. With the new millennium, however, the atmosphere changed. In 2001, freelancer Vanessa Leggett spent 168 days (a record) in a Houston jail for refusing to identify confidential sources to a federal grand jury.
In the summer of 2003, three journalists from Chicago writing a book about terrorism in Ireland were ordered by a U.S. District Court judge to turn over to the Irish courts their taped conversations of a witness in an Irish criminal case. When the Seventh U.S. Circuit Court of Appeals refused to issue a stay of the judge’s order, the journalists turned over the tapes. What happened next sent chills down the spines of First Amendment advocates. The case was essentially over. There were no briefs submitted, no oral arguments before the courts, yet Seventh Circuit Judge Richard Posner wrote an opinion—in a case not before him—in which he said anyone who had been reading Branzburg for the last 30 years as providing for a reporters privilege against compelled testimony was wrong. Branzburg does not provide for any type of First Amendment-based privilege, Posner declared. Period. Courts around the country began to cite Posner’s decision in McKevitt v. Pallasch as justification for denying a privilege.
Journalists’ Promise of Confidentiality
These developments did not change journalists’ behavior. They still promise confidentiality, perhaps too frequently. But prosecutors and civil litigants have gotten the message that journalists are now fair game as agents of discovery. Media lawyers do a disservice to clients if they fail to tell them the risks associated with promising to protect their sources.
In spring 2005, the Reporters Committee calculated the number of journalist subpoenas pending in federal courts at about 30. That far exceeds the reporters’ privilege crisis of the Nixon years. These cases include:
Two journalists, Matt Cooper, of Time, and The New York Times’s Judith Miller have been cited for contempt for refusing to identify confidential sources who might have identified Valerie Plame as a covert CIA operative.
Six journalists have been cited with contempt in civil court in Washington, D.C., for refusing to identify sources of information about former government scientist Wen Ho Lee.
More than a dozen newsrooms have been subpoenaed in U.S. District Court in Washington, D.C., for the identities of government employees who might have released information from the personnel file of government scientist Steven Hatfill, who was suspected of involvement in the anthrax scare in the fall of 2001.
A federal prosecutor in Chicago subpoenaed phone records of two New York Times reporters (one is Miller) to identify their confidential sources in a story about Islamic charities.
Rhode Island television reporter Jim Taricani recently was released after four months of home detention for refusing to identify the source of information about a federal grand jury that indicted Providence’s mayor.
The list continues.
It’s ironic that at the same time federal judges in the United States have been less willing to recognize a privilege for American journalists, the number of countries providing shield laws for reporters is increasing. In Sweden, for example, it is illegal for a journalist to identify a confidential source.
These countries have recognized the basic truths about confidential sources: First, providing reporters with a privilege from compelled testimony ensures the independence of the media— citizens might better trust information if they know the reporters are not operating merely as an agent for the government. And second, the public will ultimately receive more and better information that we all need to make decisions in a democracy if whistleblowers are protected.
In the meantime, news organizations are fighting for their employees in the courts. Unlike the early 1970’s when the Reporters Committee was formed because editors and publishers were not stepping forward to protect their reporters, employers are working hard on these issues. They understand that you can’t operate a successful business if your employees are thrown in jail merely for doing their jobs.
Congress is again considering a shield law. It will be a long, difficult battle. The first task is to come to some sort of agreement among journalists regarding the need for a privilege. Many journalists believe the First Amendment should be enough protection. Unfortunately the U.S. Supreme Court does not agree. Barring an unlikely change of heart by the justices, the only alternative is a shield law. And the Reporters Committee will continue to fight on the side of reporters who need to protect their sources.
Lucy Dalglish has been executive director of the Reporters Committee for Freedom of the Press for five years. She was a reporter and editor at the Saint Paul Pioneer Press from 1980- 1993, and a trial lawyer in Minneapolis from 1995-2000.