A Source is a Source: 4

ABA Journal: "FROM THE MARCH ABA JOURNAL
THE NATIONAL PULSE

THE SQUEEZE ON THE PRESS

More Courts Are Forcing Reporters to Testify as Judges Reconsider Media Privilege

BY WENDY N. DAVIS

For more than 30 years, federal courts generally have been deferential toward journalists when it came to having them testify about information learned while reporting.

But over the last year, the tide appears to have turned. In a series of well-publicized cases, journalists from major media have been held in contempt of court for refusing to testify before grand juries.

In October, U.S. District Judge Thomas Hogan in Washington, D.C., held New York Times reporter Judith Miller and Time magazine's Matthew Cooper in contempt for refusing to answer questions in the investigation about the leaking of the identification of CIA agent Valerie Plame. The case went before the U.S. Court of Appeals for the D.C. Circuit in December.
Five reporters--from The New York Times, the Los Angeles Times, CNN, the Associated Press and The Washington Post--were held in contempt last year by U.S. District Judge Thomas Penfield Jackson and fined $500 a day for declining to reveal sources who gave them information about former Los Alamos, N.M., scientist Wen Ho Lee, who filed a civil lawsuit against the government for violating his privacy rights. (The fines are stayed while the reporters appeal.)

In Providence, R.I., television reporter Jim Taricani was held in contempt by U.S. District Judge Ernest Torres and sentenced to six months of home confinement for refusing to divulge the name of a source who gave him an FBI videotape.

BALANCING ON BRANZBURG

These hardly mark the first occasions that journalists and courts have clashed. But they do represent a subtle change in how the seminal U.S. Supreme Court case on the issue has been interpreted.

For years, Branzburg v. Hayes, 408 U.S. 665 (1972), was viewed as facilitating the creation of a reporter’s privilege from testifying—even though the ruling essentially went against the reporters.

Although the case was decided 5-4, only four justices signed on to the opinion that rejected giving reporters special constitutional protections from testifying. The deciding vote was cast by Justice Lewis F. Powell, whose 319-word concurrence supported the notion that reporters called to testify have more First Amendment protections than everyone else.

“The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct,” Powell wrote. “In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”

Attorneys latched on to that language to argue, largely successfully, that Branzburg created, rather than nixed, constitutionally mandated protection for reporters.

“Powell’s concurrence led some very creative media lawyers out there to persuade most of the federal circuits to fashion a qualified privilege,” says Lucy Dalglish, executive director of the D.C.-based Reporters Committee for Freedom of the Press. “We had been remarkably successful in getting courts to follow Powell’s concurrence.”

Branzburg led most states and the District of Columbia to pass their own shield laws for reporters. Some state courts fashioned a common-law reporter’s privilege. Only Wyoming has declined to grant journalists special protection.

On the federal level, reporters occasionally were ordered to testify in grand jury proceedings, and more than a dozen were briefly jailed between 1984 and 2000.

Although the circuits were split on the issue, many judges nevertheless seemed to allow journalists more protection from testifying than other witnesses.

Then, in 2003, a decision by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals changed the landscape. In McKevitt v. Pallasch, 339 F.3d 530, two reporters objected to a district court judge’s order requiring them to turn over interview tapes of a witness to a criminal defendant in Ireland.

The appeals court ruled against the reporters, with Posner debunking the notion that Branzburg created special protections for journalists.

“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege, though they do not agree on its scope,” Posner wrote. “It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoena.”

The opinion left the media bar reeling. “We all got it and immediately started gasping for air,” Dalglish says.

Some judges still adhere to the old interpretation of Branzburg, says Sandy Baron, executive director of the Media Law Resource Center, a New York City-based nonprofit clearinghouse. But Baron, as well as other advocates, worry that they no longer can rely on the courts.

Instead, they’re pushing for a federal shield law—“a terribly important issue for the press at this moment,” Baron says.

Journalists argue that they can’t do their jobs unless sources can be assured of confidentiality—particularly on sensitive matters like national security.

“If you want to cover the federal Congress or federal courts or national security, you are really risking a lot because there are certain beats that can only be done with confidential sources,” Dalglish says.

Last year, Sen. Christopher Dodd, D-Conn., introduced a bill modeled on the D.C. shield law. It died with the 108th Congress, but a staffer says Dodd intends to reintroduce the measure.

His bill—“to establish protections against compelled disclosure of sources, and news or information, by persons providing services for the news media”—would allow reporters to keep the identities of their sources secret.

The proposed legislation would also protect journalists [whatever that is!] from testifying about their research, unless a court finds the requesting party cleared a number of hurdles, including that the information is necessary to resolve a “significant legal issue,” that it cannot be obtained any other way [can't prove a negative], and that there is an overriding public interest in the disclosure.

WHAT ABOUT BLOGS?

While media advocates applaud Dodd’s initiative, some point to problems with the language. The protections seem to apply only to reporters working for traditional media—newspapers, magazines, radio, television and wire services.

Critics say it’s ambiguous whether such definitions encompass bloggers or other new-media journalists.

Dalglish says that while the definitions might need tweaking, any concerns can be addressed.

Dodd’s proposal isn’t the first time Congress has considered a shield law. Ninety-nine separate bills were introduced between 1973 and 1978, Dalglish says. None went anywhere, ironically owing to media advocates who disagreed about what the bills should include. Some in the media were afraid that any legislatively created privilege would lead to licensing of journalists—a prospect many abhorred.

At the same time, the federal courts’ media-friendly interpretation of Branzburg lessened the need for new legislation.

Now many in the press are rallying behind a federal statutory privilege. “I think it would be a great tragedy for there to be any kind of cloud over the reporter’s privilege,” Baron says.

Dalglish is optimistic for a simple reason: “There’s not a single member of Congress, or their chiefs of staff, who hasn’t been a confidential source at some time.”

2005 ABA Journal

Perhaps true, but not a confidential source for a crime or a tort, were they? -Ed