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A Federal Shield Law is Needed to Protect Confidential Sources and the Public’s Right to Know: A Reply to David Pozen

[The post below is part of an exchange between Dave Pozen and Sophia Cope on media shield laws and the recently proposed Free Flow of Information Act.  Don’t miss Dave’s post, which was posted earlier.]

Federal judges need strong national standards to apply to protect confidential sources

Contrary to what Dave Pozen argues, demands that journalists reveal their confidential sources in federal court will not be legitimized should Congress pass a federal shield law. The sad truth is that such demands – whether issued via subpoena or another form of compulsory process or in criminal or civil cases – have been happening for decades and will continue to happen whether or not a federal shield law is on the books.

The problem has been that federal judges do not have a strong federal law to turn to for guidance. In 1972, the Supreme Court ruled in Branzburg v. Hayes that a journalist does not have a First Amendment right to refuse to testify before a grand jury about a confidential source unless there is proof that the government is acting in bad faith. Since then, the federal circuits have struggled to interpret Branzburg in a way that provides a meaningful reporter’s privilege.

The result over the past four decades has been a patchwork of different standards and precedents from circuit to circuit, with none of them providing truly robust protection for journalists and their confidential sources. A federal shield law would provide clear and consistent rules across all federal jurisdictions governing when journalists may be compelled to reveal the names of their confidential sources in criminal and civil cases.

Dave correctly notes that if a federal judge refuses to dismiss a subpoena seeking the name of a confidential source it may be harder to criticize the outcome with a federal shield law on the books. But the fact remains that a statute would provide much more protection than what current federal precedent provides, giving federal judges more to work with when considering motions to quash and giving journalists a fighting chance to protect their sources in federal court.

A federal shield law would have helped in recent cases

The current effort to pass a federal shield law was spurred by three recent investigations into leaks of classified information in violation of the Espionage Act.

A federal grand jury, investigating a May 2012 story by the Associated Press about how the CIA thwarted a second underwear bomb plot by Al Qaeda, secretly subpoenaed two months’ worth of call records, affecting over 100 journalists and covering over 20 phone lines. Because the AP received no notice, it could not challenge the subpoena in court.

The FBI used a warrant to seize Fox News reporter James Rosen’s emails, convincing a judge that there was probable cause to believe that he was an “an aider and abettor and/or co-conspirator” to a violation of the Espionage Act by a former State Department official, who was accused of disclosing in June 2009 that North Korea planned to respond to new UN sanctions with another nuclear test.

James Risen was subpoenaed about the source for a chapter in his book entitled “State of War: The Secret History of the CIA and the Bush Administration” about a failed CIA operation against Iran’s nuclear program. Although the book was published in 2006, the leak occurred in 2003. The Fourth Circuit recently upheld the subpoena and denied his request for an en banc hearing.

In all three cases a federal shield law likely would have been helpful because the national security exception to the privilege in leak cases (set forth in Section 5 of the Senate bill, which passed the Senate Judiciary Committee last month) is limited to preventing future harm. The bill also states that the risk of future leaks by the confidential source is not, by itself, sufficient to automatically compel a reporter’s testimony.

It is hard to imagine what future harm to national security would have been prevented by forcing the reporters to testify about their confidential sources – especially in the case of Risen, where the leak occurred over a decade ago. With the exception inapplicable, federal judges would have been free to consider whether the reporters’ testimony was “essential” to the government’s cases and whether there was a strong public interest in protecting the confidential sources.

The Senate bill also applies to demands for journalists’ communications records. It creates a default requirement that journalists be notified and given an opportunity to challenge such demands in federal court, and sets forth stricter standards for delaying notice than what current law provides.

There is little doubt that a federal shield law would have guided judges in the three recent leak cases. In fact, the Fourth Circuit specifically called out the lack of a federal shield law in its opinion upholding the subpoena against Risen.

The threat to the public’s right to know is real

Dave dismisses the need for a federal shield law because only a handful of high-profile cases have made the news, but he does not appreciate the impact such cases have on the public’s right to know. President and CEO of the Associated Press Gary Pruitt recently said:

“Some of our long-trusted sources have become nervous and anxious about talking to us – even on stories that aren’t about national security. In some cases, government employees that we once checked in with regularly will no longer speak to us by phone and some are reluctant to meet in person.”

A study by a Brigham Young University law professor also confirmed that high-profile demands for confidential source information create a very real chilling effect that ripples across newsrooms. Several journalists have also faced harsh punishments – including imprisonment and fines – for protecting their confidential sources in the absence of a federal shield law. This surely contributes to the chilling effect on journalists and sources, and negatively impacts the public’s right to know.

Additionally, demands for confidential source information do not solely come from grand juries, or federal investigators and prosecutors; they also come from criminal defendants and civil litigants. A federal shield law would allow journalists to challenge such demands from all parties.

A federal shield law would apply to nontraditional news outlets

The First Amendment allows everyone to publish and journalists cannot be licensed by the government. However, not everyone can refuse to comply with an otherwise valid court order to testify. The Senate bill, therefore, includes a definition of who qualifies to invoke the privilege to protect a confidential source.

The definition of “covered journalist” requires the person to have had the primary intent to gather news or information and disseminate it to the public. The person must also be, or was when engaging with the confidential source, an employee, independent contractor or agent of an entity that distributes news or information by a variety of means, both traditional and nontraditional; the list is meant to be technology-neutral. Or the person must have a track record of being a journalist: the person was previously affiliated with a news entity for one year within the past 20 years, substantially contributed as a freelancer to a significant number of stories within the past five years, or was a college journalist.

Most importantly, the Senate bill includes a safety valve, giving federal judges the discretion to protect the source of someone who does not fit precisely into the definition of “covered journalist” if the judge finds that doing so would be in the interest of justice.

In summary, a federal shield law would not legitimize demands that journalists betray confidential sources. Rather, it would protect the public’s right to know by applying to the majority of those who gather news and by providing meaningful protection for confidential sources, which federal law currently does not provide.

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About the Author

Director of Government Affairs and Legislative Counsel at the Newspaper Association of America Follow her on Twitter (@scopesetic).