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FREEDOM OF THE PRESS: A BRIEF PRIMER

A summary of the underlying principles, key court rulings and current climate.

The First Amendment and reporter's privilege

photo of the supreme court

“Congress shall make no law … abridging the freedom of speech, or of the press…”

Journalists' privileges on revealing the identity of confidential sources, cooperating with grand juries and publishing material the government doesn't want revealed are derived from the above clause in the First Amendment, whereby the Constitution recognizes the press as a vital conduit for getting information to the public. If it is curtailed or censored, citizens won't get the information they need in a democracy to make intelligent voting decisions.

Confidential Sources Privilege -- The process of gathering information and getting it to the public will be impeded, say journalists, if they're unable to protect confidential sources. There are times when the only way a reporter can obtain information is by offering anonymity to his source. Another reason given for the journalist-source privilege is press credibility. The press has to be seen as independent -- not an arm of the government or law enforcement -- and journalists need to be able to assure the public that the information that they are giving citizens has been independently collected.

The Right to Publish Classified Information Relating to the National Security -- In its role to help produce an informed electorate, it's been the job of the press to provide information on the government's activities and how it is doing protecting the country, so citizens can make up their own minds when they go to the ballot box. With the press as a watchdog, the government cannot be the editor or the censor of what information journalists give the public.

But these reporter's privileges have developed only over the last 50 years or so and have been most successful at the state level, where 49 states have passed shield laws for journalists. The debate continues on the conflict between press freedoms and equally important societal values, such as administering justice or safeguarding the country.

See FRONTLINE's interviews with Lucy Dalglish, Mark Feldstein, Brad Reynolds and Bill Keller which address these tensions. The First Amendment Center has an overview of press freedom and the Supreme Court and in January 2007 published a report examining the rising conflicts between the federal government and the press over matters of leaks, secrecy and threats to prosecute journalists for espionage or treason for reporting classified information. The Reporters Committee for Freedom of the Press has published a handbook that offers background on the national security/press issue, as well as the use of confidential sources.

 

How has the Supreme Court ruled on reporter's privilege?

The only time the Court addressed the issue of reporter's privilege was in 1972 in Branzburg v. Hayes. The Court combined the cases of three reporters, including New York Times reporter Earl Caldwell, who were challenging grand jury subpoenas demanding they reveal their sources. The Court ruled 5-4 that all the reporters had to testify and that the First Amendment afforded reporters no privilege. Ironically, none of the reporters ended up having to give testimony.

But within the legal community, the debate continues on Branzburg's exact meaning and when it applies. Justice Lewis Powell had written a concurring opinion in the decision stressing "the limited nature of the Court's holding." Times attorney James Goodale interpreted Powell's comments to mean that in another case he might support a reporter's privilege. Combining Powell with the four dissenters in Branzburg, Goodale argued that a majority of the court did favor a qualified reporter's privilege.

Over the past 30 years, courts have widely interpreted Branzburg, often siding with Goodale. But in 2003, an influential judge on the U.S. Court of Appeals in the Seventh Circuit, Richard A. Posner, writing on a case involving subpoenaed interview tapes, declared that in his reading, Branzburg granted no reporter's privilege and that decisions to the contrary were on shaky legal ground. And in 2005, a three-judge panel of the D.C. circuit court ruled that New York Times reporter Judith Miller had to testify in the Valerie Plame/CIA leak investigation. Referring to Branzburg, Judge David Sentelle wrote: "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter."

 

How have lower courts ruled on reporter's privilege?

Forty-nine states have granted reporters some degree of privilege, protecting them from being compelled to testify or to identify confidential sources. In 31 of those states and in the District of Columbia, that privilege has been codified into a shield law, while in others, court rulings have upheld reporter's privilege and established legal precedent. In both circumstances, the extent of the protection, who is protected, and the conditions under which privilege applies vary widely.

The situation is similar in the 12 federal circuit courts, almost all of which have established a qualified privilege. But the privileges vary substantially and hold only a slight precedent in some circuits.

See The Reporters Committee for Freedom of the Press' extensive online resource that outlines the scope, conditions, case history and other details surrounding privilege in each state and judicial circuit. The First Amendment Center summarizes each circuit's stance on privilege and provides key excerpts from the relevant decisions.

 

What's the debate over a federal shield law for reporters?

Proponents say that a federal shield law is needed to preserve the press's role as a watchdog for the public; that the threat of subpoenas will stifle reporting and discourage potential sources from coming forward; and that a federal law is needed to better define rights already implicit in the First Amendment.

Opponents argue that reporters should be compelled to divulge information that is pertinent to national security or to the outcome of a court case. Some say a federal shield law would be ineffective because it would require a definition of "journalist" that could leave bloggers, freelance writers and others unprotected.

A proposed shield law, the Free Flow of Information Act of 2005, was introduced in the 109th Congress by Sen. Richard Lugar (R-Ind.) and Rep. Mike Pence (R-Ind.). Pence's bill would have granted an absolute privilege unless an "imminent threat to national security" was involved, while Lugar's version would have allowed reporters to be compelled to testify not only in the interest of national security, but also in criminal and civil court cases if certain legal criteria were met.

Both versions reached Senate and House judiciary committees, but neither made it to a vote. A representative from Sen. Lugar's office told FRONTLINE on Feb. 1, 2007 that the senator plans to reintroduce the bill during the 110th Congress.

 

What are some of the key Supreme Court cases on press freedoms?

Branzburg remains the definitive word on reporter's privilege.

The so-called "Pentagon Papers" case of 1971, New York Times Co. v. United States, involved the issue of "prior restraint": Can the government prevent journalists from publishing information for reasons of national security? The Court ruled 6-3 that the government cannot stop publication.

The Times was also involved in one of the 20th century's seminal libel cases, 1964's New York Times v. Sullivan. Sullivan was a city commissioner in Montgomery, Ala., who, claiming certain statements in the document defamed him, sued the Times, and other individuals, over a paid ad in support of the civil rights movement. The Court ruled, 9-0, for the paper and declared that public officials must prove "actual malice" -- that a statement was made with "knowledge that it was false or with reckless disregard of whether it was false or not" -- when claiming libel or defamation, a much higher standard than had existed previously.

 

How does the government decide whether to subpoena journalists?

The Justice Department has a series of guidelines that it uses in deciding whether to subpoena journalists, and the attorney general must sign off on the decision. According to the guidelines: "The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information."

 

What's required for the government to open a leak investigation?

According to Dave Szady, former FBI assistant director of counterintelligence, whose office ran leak investigations, when classified information is leaked the "victim agency," or the agency that classified the information, must file a report in which they answer 11 questions. The questions address: how widely the information has been disseminated; whether the information was properly classified; and the effect of the disclosure "on the national defense."

 

What other legal battles may threaten reporter's privilege?

Two high-profile civil cases have raised the possibility of using the 1974 Privacy Act to force journalists to reveal their confidential sources.

The cases are those of Wen Ho Lee, a nuclear scientist wrongly accused of being a spy, and Stephen Hatfill, a bioterrorism expert who came under FBI scrutiny following the 2001 anthrax mailings but was never charged with any crime. Both filed Privacy Act suits against the government seeking compensation for harm caused by officials' leaks to the media.

This type of suit -- a novel application of a law intended to protect the confidentiality of information the government maintains on individuals -- is filed against the government agency or individual who leaked the information. However, journalists may be subpoenaed to name their sources if the plaintiff is unable to identity the leakers by other means. Journalists who refuse to comply when subpoenaed in this type of civil case are unlikely to face jail, but they may still be held in contempt of court and face punitive fines.

According to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, it is the Privacy Act cases that most worry reporters and editors. "… [T]here are usually multiple sources or multiple reporters involved," she explains, "… these cases can go on indefinitely. That has an enormous impact on the bottom-line budget of your newsroom."

And then there is the Espionage Act, a 1917 law which makes the "unauthorized possession" of "information relating to the national defense" illegal. The act has not yet been used against journalists, but it has worried press advocates for some time.

In the wake of the Pentagon Papers, the Nixon administration explored using the act against The New York Times, and during the Ford administration, Deputy Chief of Staff Dick Cheney weighed using the statute to prosecute The New York Times and reporter Seymour Hersh for a story which published details of highly classified U.S. Navy missions. Neither administration prosecuted, but in the wake of The Washington Post's story on the CIA's secret prisons and The New York Times' articles on the NSA's warrantless wiretapping program, Attorney General Alberto Gonzales has publicly stated interest in using the act to go after reporters whose stories contain leaked classified information.

So far, there has only been one case where the government has used the Espionage Act to prosecute individuals for possessing and passing on classified information. In 2005, the government indicted two lobbyists for the American Israel Public Affairs Committee (AIPAC) for conspiring to get classified reports on topics including Al Qaeda, the 1996 bombing of the Khobar Towers, and U.S. Iran policy and then passing that information on to others. Defense lawyers argued that the language in the Espionage Act is overly broad and therefore unconstitutional; a judge ruled against their motion to have the case thrown out and the trial is scheduled for June 2007.

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posted feb. 13, 2007; updated feb. 20, 2007

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