This article first appeared in the St. Louis Beacon: Contrary to conventional wisdom, the proposed federal shield law backed by the press and President Barack Obama wouldn’t help reporters protect their sources in big national security cases, such as the recent ones involving the AP and James Rosen of Fox. In fact, the law could make it harder for the press to protect sources in those cases.
That is the view of many legal experts, including some who favor the bill because it would allow journalists to protect their confidential sources in run-of-the-mill civil cases better.
The reason the proposed shield law does not shield journalists in the big cases is that national security trumps the reporter’s privilege when valuable, top-secret information is involved, as it was in the AP and Rosen stories.
Joseph E. Martineau, a veteran media lawyer at Lewis Rice Fingersh in St. Louis, said that some federal courts provide more protection for reporters and their notes than earlier versions of the federal shield law. But he said a federal law might help reporters in parts of the country where federal appeals courts have not provided the media with much protection, such as the 7th U.S. Circuit Court of Appeals in Illinois.
“While a federal shield law might provide more clarity and uniformity,” he wrote in an email, “and create a privilege in those courts where the courts seem less inclined (e.g. 7th Circuit), depending on its language, it could actually diminish the protections that some federal courts have recognized.”
Benjamin A. Lipman, Martineau’s partner, generally agreed, but added in an email, “I think without a shield law as time marches on protection from the courts is more likely to get weaker rather than stay the same or get stronger.”
What is a shield law?
Shield laws allow reporters to protect the identity of confidential sources who provide valuable information about questionable government actions. They grew up after the U.S. Supreme Court ruled in 1972 in Branzburg vs. Hayes that the First Amendment didn’t do the job. The court ruled 5-4 that there generally is no constitutional right of a reporter to protect confidential sources during a criminal investigation. In that case, New York Times reporter Earl Caldwell was trying to protect the identity of Black Panthers in Oakland who had talked to him about potentially illegal activities.
Without a constitutional protection, journalists persuaded many states to enact a statutory protection in the form of shield laws. Most states have adopted such a protection either through legislation or court decisions. Illinois has a statute, and Missouri law relies on state court rulings.
But there has never been a federal shield law for the federal courts. The 85 days that former New York Times reporter Judith Miller spent in jail during the Valerie Plame case in 2005 provided an impetus for a federal law. Miller had refused to identify I. Lewis “Scooter” Libby as the person who had told her that Plame was an undercover CIA agent. A judge put her behind bars until she gave his name.
The federal shield law seemed on the verge of passage in 2009 but was derailed with WikiLeaks’ wholesale disclosure of diplomatic cables.
xxxSource: Reporters Committee for Freedom of the Press
New push for shield
The Obama Justice Department’s broad subpoena of the phone records of about 100 AP reporters and editors in three bureaus brought the shield law back to life. Then came the Rosen case in which the Justice Department was not only trying to unearth the source of the leak within the State Department but also was investigating Rosen as an accomplice.
Resurrecting the shield law was a convenient political move for the Obama administration because it was able to deflect some of the press’ outrage over the AP and Rosen episodes by taking the side of journalists.
Journalism organizations, such as the Society of Professional Journalists, have sent out urgent calls for passage of the bill, urging members to contact undecided senators and editorial editors to publish editorials favoring the bill.
But the bill raises questions:
- Do reporters or citizens want Congress deciding who is a journalist entitled to the law’s protection? The earlier House version of the bill would not have included journalists without an employment relationship with a news organization – in other words “citizens journalists.”
- How valuable is the shield law if it wouldn’t have helped the AP or Rosen or Miller or Caldwell himself?
- Are journalists better off seeking the protection of case law in the courts than relying on the shield law?
In 2009, media lawyers gathered in New York discussed their divided feelings about the federal shield law that looked as though it was about to be voted on in Congress. They included James Goodale, the prominent media lawyer who helped defend Caldwell and the New York Times.
Goodale admitted to mixed feelings about the federal shield bill, noting that it would not have protected Caldwell. Nor would the proposed bill protect reporters’ notes or emails sufficiently, he noted.
Most of the lawyers thought then that the New York Times and Washington Post would find it harder to win national security cases if the shield law were to pass. By supporting passage of the shield law, the press will be seen to have agreed to its compromises, including the one making it hard to win in national security cases.
Even though the media lost the Caldwell case, many federal courts recognized some measure of constitutional or common law protection for journalists’ sources in the years following the decision. Media lawyers won’t be able to rely on that progress if the law passes, Goodale said, because they will have been viewed as having given up the argument to win the shield protection.
The bill’s biggest benefit to news organizations would be in civil cases where those seeking to obtain a reporter’s confidential sources would have to show that there was no alternative way to get the information and would have the burden of proving that the value of the publication of the news was outweighed by the need to obtain the names of the confidential sources.
New organizations should win most of these cases. The new shield should allow the media to win cases they lost in the past, such as Wen Ho Lee’s privacy suit against the federal government in which he sought the names of confidential sources. News organizations had to add money to the government’s settlement of Wen Ho Lee in order to protect their sources.
But the burden of proof in criminal cases would switch to news organizations. Where prosecutors have no alternative ways to get information, news organizations would have to show that the public interest in publication was greater than the prosecutor’s need for information. Not only is the burden of proof on the press, but the burden is high – by “clear and convincing” evidence.
Nevertheless, media lawyers believe that they would win some cases they might lose today without a shield law. A good example is the Balco case where San Francisco Chronicle reporters obtained secret grand jury transcripts implicating Barry Bonds in using steroids.
National security cases will be even harder to win. The bill says that reporters have no privilege at all in cases involving potential harm to national security.
Even if the government can make the national security showing, the test for criminal cases kicks in – setting a high bar for the press. Ironically, those are precisely the cases that have led to the current controversy and the campaign to pass the bill.