The Ongoing Debate Over the Reporter’s Privilege

I had a video conference last week with a group of judges attending the National Judicial College in Reno, Nevada. They were taking a course on Media and the Courts, and wanted to discuss the reporter’s privilege. Their instructor reached out to me after seeing some articles I’ve written opposing the privilege. The primary topic of discussion: should there be a reporter’s privilege?

A reporter’s privilege, or shield law, protects journalists from being compelled to testify about the identity of their confidential sources or other information they learned while newsgathering. Supporters of the privilege argue that if reporters can be compelled to reveal their sources, whistleblowers and others who wish to remain anonymous will be afraid to talk to them. That will impair the ability of journalists to root out important information and will deprive the public of the benefits of a vigorous free press.  Without the privilege, they claim, sources will be “chilled” from coming forward and the free flow of information to the public will dry up.

I first became interested in the reporter’s privilege and started writing about it ten years ago, during the Valerie Plame/CIA leak case.  During that investigation, reporter Judith Miller of the New York Times was held in contempt and went to jail for about three months after defying a court order to reveal her White House source in the grand jury.   Miller’s incarceration led to a number of unsuccessful attempts to pass a privilege law in Congress, but efforts to shield leakers of confidential information lost steam in the aftermath of Wikileaks and Edward Snowden.

Renewed debate over the privilege has been in the news again recently. Reporter James Risen asserted the privilege and refused to testify in the criminal trial of Jeffrey Sterling, a former CIA employee charged with leaking classified information to Risen. The courts ruled against Risen after a four-year legal battle, but he still refused to testify. Faced with the prospect of having Risen jailed for contempt, the government at the eleventh hour withdrew its subpoena and prosecuted Sterling (successfully) without Risen’s testimony.

In addition, earlier this month, the National Press Club and the Reporters Committee for Freedom of the Press hosted a reunion of journalists who have gone to jail to protect their confidential sources.  (Judith Miller was a featured participant.) The gathering was part of a renewed push to urge Congress once again to pass a federal shield law.

The judges and I had a great conversation. Here’s a summary of some of their questions and my responses.

old newsroom - should there be a reporter's privilege?

What’s the current legal status of the reporter’s privilege? 

On the federal level, the Supreme Court ruled in 1972 in Branzburg v. Hayes that the First Amendment does not provide a privilege for reporters to refuse to testify in grand jury proceedings. That remains the law as far as grand jury proceedings are concerned. Lower courts have disagreed over whether there is at least a qualified privilege in civil cases, or in criminal matters other than grand jury proceedings. The Supreme Court has not weighed in since Branzburg, although it did recently decline to hear the appeal of the Fourth Circuit’s decision in the James Risen case, which rejected Risen’s claim of privilege in a criminal trial.

Over the past four decades there have been many unsuccessful attempts in Congress to pass a federal shield law. Since the CIA leak case and the jailing of Judith Miller, a bill called the Free Flow of Information Act has been introduced in repeated Congressional sessions but has never been passed.

Although there is no federal shield law, the Department of Justice has voluntary guidelines that sharply limit when DOJ attorneys are allowed to subpoena a reporter. Those guidelines were recently made even more strict in the wake of the Risen case and some other recent DOJ skirmishes with the press.

On the state level, forty-eight states and the District of Columbia recognize some form of a reporter’s privilege in at least some cases, either by statute or by judicial decision. Wyoming and Hawaii are the sole holdouts.

Should There Be a Reporter’s Privilege?

Privileges are contrary to the fundamental precept that the public is entitled to every person’s evidence. By definition, a privilege keeps relevant information out of the hands of a judge or jury trying to decide a case. If the information is important enough, that can lead to errors and injustice in particular cases, including wrongful convictions or guilty individuals escaping punishment altogether.

Proponents of any new privilege therefore have the burden of demonstrating that the benefits of the privilege would outweigh the costs. On the benefit side of the equation, reporter’s privilege advocates argue that in the absence of a privilege sources will fear to speak to reporters and the public will be deprived of vital information. They cite such famous stories as Watergate, Abu Ghraib, and the revelation of secret CIA prisons and NSA wiretapping to demonstrate the critical importance of confidential sources to investigative journalism.

The problem with this argument is that all of those stories were reported, and all of those sources came forward, in the absence of a federal shield law. One could just as easily argue, therefore, that these stories demonstrate a shield law is unnecessary.

In Branzburg the Supreme Court was skeptical of the premise behind the shield law, noting that the lessons of history suggest the free press has always flourished without a privilege.  Claims about “chilling effects” and harms to the press, the Court noted, were largely made by self-interested members of the media themselves.

On the cost side, we also must recall that the shield law is a blunt instrument that protects the bad along with the good. Not all leaks involve a virtuous whistleblower seeking to benefit the public by disclosing government misconduct. Some leaks are political hit jobs, like that in the Valerie Plame/CIA leak case, or otherwise involve bad motives. There is no public interest in shielding such leaks to the press.

Finally, it’s not true that reporters cannot promise sources confidentiality in the absence of a shield law. Because cases in which journalists are subpoenaed are so rare, reporters can provide sources with a high degree of confidentiality simply by promising not to name them in the story and never to reveal their name unless legally compelled to do so.

Leaks happen, and particularly in Washington, leaking to the press is almost a way of life. Sources talk to the press for many different reasons, some noble and some not so noble. There is no evidence that the presence or absence of a shield law makes any real difference in whether or not a source decides to come forward. In the absence of such evidence, the rationale for the shield law evaporates.

Why has the legislation repeatedly failed in Congress and what are its prospects?

I think there have been two primary stumbling blocks for the federal shield law.

The first is the question of carving out exceptions. Congress is understandably not willing to enact a blanket privilege that would apply in every case. Therefore the proposed statutes always contain exceptions providing that the privilege will not apply in cases involving terrorism or where national security is threatened, or in cases involving certain violent crimes, or sex crimes against children, or other categories of offenses.

Inability to agree on the proper scope of these various exceptions has helped stall the bills. The problem, of course, is that the more exceptions the bill contains, the less effective it will be because it becomes more and more difficult for a source or a reporter to determine, at the time of a potential disclosure, whether the privilege would apply. If we assume for argument’s sake that sources actually weigh the presence or absence of a privilege when deciding whether to speak to a reporter, the most effective privilege would be a blanket one with no exceptions – but Congress will never agree to that.  A privilege full of loopholes is little better than no privilege at all.

A second thorny problem is how to define who is a “journalist” entitled to the protection of the shield law. Even more than forty years ago in Branzburg, the Supreme Court noted that trying to define who is a “newsman” worthy of the privilege “would present practical and conceptual difficulties of a high order.” This was at a time when the news media consisted largely of local newspapers, radio, and three television networks. In the age of the Internet, social media, and citizen journalism, those difficulties are exponentially greater.

Congress is trying to strike a balance between covering those who are truly engaged in journalism while not creating a sweeping privilege that might apply to everyone who posts something of public interest on their own blog or Facebook page. Trying to draw those lines has proven challenging; the latest iteration of the shield law contained a definition of a “covered journalist” that was hundreds of words long, full of exceptions and qualifications, and that still didn’t satisfy all the interested parties.

How would you solve the definition of “journalist?”

I’m not sure there is a way to do it that doesn’t raise significant constitutional problems. The Supreme Court has made it clear that the protections of the First Amendment apply equally to the New York Times and to a lowly street-corner pamphleteer – or pajama-clad blogger. But the shield law requires the government to define who is a “real” journalist worthy of special legal protection and who is not. That effectively creates a subset of “approved” speakers, and approaches a system of allowing the government to license journalists. I agree with investigative journalist Walter Pincus at the Washington Post that this raises significant First Amendment concerns.

Why not just have a sweeping definition of “journalist” that covers everyone who shares information with the public?  What’s the problem?

If the privilege applies to everyone who shares any information with the public, then a tremendous amount of information from an enormous number of witnesses is potentially excluded from the legal system. Again, privileges have costs, and the more sweeping the privilege, the greater the costs.  And once again we’d have to wonder whether there are really any offsetting benefits that would outweigh those costs, considering that the information age currently appears to be thriving in the absence of such a privilege.

A related problem is the administrative costs of the privilege. Every claim of privilege requires legal proceedings, pleadings, lawyers, hearings, and court time to resolve. If a privilege is too broad, a huge amount of time, money and effort in the judicial system will be devoted to adjudicating claims of that privilege.

If almost all states have some form of privilege, why can’t the federal government have one?

This really is an apples to oranges comparison. The largest and most significant cases, including those involving national security and terrorism, tend to be in federal court. A federal shield law would have far greater potential to apply in those types of cases, and therefore to shield the most dangerous or harmful conduct. State courts generally don’t deal with issues of that magnitude.

For the federal shield law, the potential stakes are much higher. That’s part of the reason Congress has had so much trouble working out the terms of a shield law that it could live with.

What sort of evidence would it take to convince you that the privilege is a good idea?

To borrow a hypothetical posed by one of the judges, suppose Watergate had never been reported. Then suppose Mark Felt came forward in the 1990s, after Nixon had died, to say he had considered talking to Woodward and Bernstein but had been afraid to do so because of the absence of a reporter’s privilege. As a result, there was no “Deep Throat,” and the country never learned about a major political scandal.

If credible stories like this existed, that would at least provide some evidence that shield law advocates are correct. It wouldn’t have to be on the scale of Watergate, of course, but if the privilege is really as important as its advocates claim, you’d think there would be some documented examples of sources coming forward later to say they were deterred from speaking in the past due to the absence of a privilege. I’m not aware of any such examples, but if they were out there, one would at least have to rethink the cost and benefits questions surrounding the privilege.

(As an aside, speaking of Watergate, I have it on good authority — from a reliable, confidential source — that Bob Woodward, Mr. Investigative Journalism himself, thinks the reporter’s privilege is unnecessary and a bad idea.)

Why should reporters go to jail for just doing their jobs?

They don’t. This is one of the greatest red herrings in the whole privilege debate, and everyone (on both sides of the argument) resorts to it.

In totalitarian countries, governments may throw journalists in jail for what they write. THAT’s a reporter going to jail for doing his or her job. That doesn’t happen in the U.S. and has nothing to do with the privilege debate. Judith Miller did not go to jail for anything she wrote, and James Risen was not facing the prospect of jail based on any of his reporting.

When reporters are jailed in privilege disputes, it is for contempt of court. They have refused to answer a question in a legal proceeding without a valid excuse. As a result, like any other witness, they may be jailed for contempt to try to coerce them into complying with the court’s order.

As an attorney, part of my job includes protecting client confidences, and the law recognizes the attorney-client privilege. But if a judge rules that the privilege does not apply in a given case and that I must testify about something a client told me, my obligation is to obey that court order. I don’t get to decide for myself what the law requires. If I defy the court’s order, I can be jailed for contempt until I comply.

All legal privileges, by definition, must exist within the framework of the legal system and the rule of law. That means that courts are the final arbiters of privilege questions. Individuals who defy lawful court orders are not “doing their jobs,” they are placing themselves above the law.

Many reporters feel so strongly about the privilege that they, like Judith Miller and James Risen, will refuse to testify no matter what a court says. This is also why passing a shield law will not keep reporters from going to jail. Assuming that any shield law passed by Congress would contain some exceptions, there will still be future cases where a Court rules that the privilege does not apply. In such a case, if the reporter still refuses to testify, he or she can still be jailed for contempt. Contrary to the claims of its supporters, therefore, a shield law will not keep reporters from being locked up.

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Thanks to the National Judicial College for the enjoyable discussion. Those interested in taking a much deeper legal dive into these and other issues surrounding the reporter’s privilege can find law review articles that I’ve written here and here.

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  1. Pingback: Shield Laws: Needed Protection or Unwarranted Privilege? – domelsomejournalist

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