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Should there be a federal shield law?

Floyd Abrams

First Amendment attorney

Floyd Abrams

You're a big advocate of a shield law.

Yeah.

But a shield law is not going to cover national security.

A shield law would still require the government to make a very major showing that they had exhausted other sources, that they need the information from the journalists, and in particular from the journalist, and that taken as a whole, the interests of the country would be better served by having the testimony than not.

That at least gives the press the opportunity to argue to a court in let's say the surveillance case that the government was acting illegally, that the surveillance program was itself a crime, and that therefore, even in a genuine national security area, that the government should not be in the position of requiring the press to testify. That's a big step forward if that statute in its current draft were to go through.

So you're going to give the government a speed bump, basically, they've got to get over.

Well, I hope it's more than that. The most important thing to me, particularly in the leak area, is the importation into the legal test of some requirement that a government show not just that it's useful for an investigation and not just that it's gone to other places to look for the information, but that there will be significant public interest served by having the information as opposed to not having the information. But at least you get a neutral decision maker -- a judge -- to be in the position of passing on whether the information should be revealed or not.

Now, in the national security area, the press will lose some of those. I agree with you. But I think they'll win some also. What happens if they lose it? I don't know if what we're going to see is more journalists going to jail or more journalists testifying if they're ordered to testify.

Or fewer stories.

Well, I do think that if we start down the road of having more and more of these leak investigations that we will in all likelihood have fewer stories.

 

Earl Caldwell

This is one of the reasons I really, truly believe the hell with the federal shield law, with the government sanctioning us. You say: "Well, it's easy for you to say. You're not a reporter out here now. You're not the one that's going to jail." But I believe that this is what's going to have to happen. We've got to have reporters that are ready to stand up and go to jail -- and many of them are -- because I believe that when the public can truly see exactly what is involved, that they would be on the side of the reporters. ...

But you don't believe in a federal shield law?

No, I don't believe in a federal shield law. I believe our rights are constitutional. I'm a founding member of the Reporters Committee for Freedom of the Press. Every day I think I should resign because they're one of the leading advocates of going to the Congress and asking them to legitimatize us. They can't legitimatize us; our rights are constitutional, and if they're not constitutional, they don't exist. ...

If you say to this legislature, "Please, Mr. Legislator, give us some rights," they love you today. Say, "Yes, absolutely." They hate you tomorrow -- they say, "Take it away." Or the first thing they have to do, which to me is the most dangerous of all, they've got to define who is a reporter, who is a journalist. How can you do that? Simply because you work for this big corporation, does that make you more valid than someone that's working for a little weekly out in somewhere, or a person that's at home putting it out on the Internet? All these are important pieces. I believe it's constitutional. [If] it's not constitutional, they don't exist.

 
Mark Corallo

Former director of public affairs, Justice Department

Mark Corallo

My good friend [former U.S. Solicitor General] Ted Olson wrote a column for The Washington Post a couple weeks ago where he argued for a federal shield law for reporters. I never believed that that was necessary, because I always believed that ... people at the Justice Department were responsible enough to live by the guidelines; that they would only use it sparingly, in exigent circumstances, as defined. That seems to have changed. ...

 
Randall Eliason

Former prosecutor

Randall Eliason

In terms of the importance of the sanctity of the confidential source-reporter relationship, all of these really important stories that have come out over the last 30-odd years -- you know, My Lai, Watergate, Abu Ghraib, Iran-Contra -- [former Washington Post executive editor] Ben Bradlee told us that the first 150 stories they did on Watergate didn't have a single source named to them.

And all of these major stories that have come out over the years -- Watergate, Iran-Contra, Abu Ghraib, secret CIA prisons -- all took place without a reporter's privilege law. I think history teaches us -- and this is another thing that Branzburg said -- leaking happens, and it happens for a lot of reasons. It always has happened, and I think there's little reason to believe that the presence or absence of a privilege law is the thing that decides whether or not a source is going to come forward and talk to a reporter.

A reporter can promise a great deal of confidentiality just by saying: "I'm not going to publish your name, and I'll never give it up voluntarily. ... I would only reveal it after I finish all my appeals, and fight it as long and as far as I can, if a court orders me to testify. Only then would I give up your name." That's a great deal of confidentiality, because that very rarely happens. There are so many other ways for a source to be revealed, through internal investigations or other kinds of investigations. ...

A source always has the option, if they're really, really concerned, to give the information anonymously, to provide information to a reporter without identifying themselves -- slip the documents over the transom, send them a plain brown envelope or make an anonymous phone call; don't even tell the reporter who you are. ...

All these interesting cases have renewed calls for a federal shield law. How appropriate is that as a response to these complicated cases?

Well, if there's going to be a privilege, it should definitely be Congress that does it. I don't think the courts should be discovering these complicated privileges in the common law and writing the terms themselves. So if Congress weighs all the policy considerations and determines that they think a privilege is appropriate, then that's fine. ...

Personally, I don't think the federal shield law is a very good idea, for a couple of different reasons. First of all, I don't think there's evidence that the law does what it says it will do, which is encourage sources to come forward who otherwise would not come forward. History shows us that sources come forward for a lot of reasons, with or without a shield law. ... And then the second reason, I think, is with the rise of the new media and particularly on the Internet, applying the law becomes very problematic, because you either have to say anyone who says they're a journalist is a journalist and can assert the privilege, or you have to have the government come in and start drawing lines. ... And having the government draw those kinds of lines is problematic from a First Amendment standpoint. ...

 
Nicholas Kristof

Columnist, The New York Times

Nicholas Kristof

Do you think a federal shield law is necessary?

A federal shield law would be great to protect reporters. I think that a federal shield law arises out of a context where reporters are respected and esteemed by the public, and I don't see that emerging in this environment.

 
Nicholas Lemann

Dean, Columbia University School of Journalism

Nicholas Lemann

Right. Look, here's the situation. Almost all states have a shield law that spells out when reporters are protected in their source relationship and don't have to testify. There is no federal shield law. This applies notably in the area of national security; national security is not covered by shield laws.

If you had to say to somebody, "What's the net result of the Plame case with respect to protecting the reporter-source relationship?" and you have to state it in one or two sentences, you'd say: "The net result is, absent a federal shield law, if prosecutors push hard, news organizations will eventually cooperate. Some will cooperate right away, some will cooperate more slowly, but the prosecutor got every news organization to testify." That's the one-sentence version of this.

But even if there's a federal shield law and you have an issue like the identity of a CIA agent, or who told you about an NSA [National Security Agency] program, no shield law is going to protect --

Well, so that's what's good about legislation. It's healthy to settle public policy matters through having laws passed because it makes all this clear, what's protected and what's not protected. A hypothetical federal shield law would clearly have to address situations like this, and it would have to say either, "Even in all cases it's protected, end of story," in which case the prosecution wouldn't go after the press, or they would say, "There are the following three or four exceptions where there is no shield," and then prosecutors would go after the press, [and] they'd have a strong case.

In other words, it's hard for the press to argue, "There's something we do that is in the public interest, and even though the public's elected representatives haven't detected that it's in the public interest, we know it is, so therefore we get a legal protection." It forces the press to go into Congress and argue the case. It's democracy at work.

One reason that a federal shield law wasn't passed -- as I understand it, Congress was poised to pass it in '74 or '75 -- one of the issues was, "What's a journalist?"

All these things you can settle, though. We journalists tend to think everything involving us is uniquely complicated and nobody can possibly work it out and understand it except for us. I've seen various iterations of this definition. But you can settle this by having a bunch of people in a room writing various versions of the legislation and arguing about it. They're all out there now. I don't think it's a crippling problem.

But meanwhile, if a federal court just ruled on another Judy Miller case involving phone records. ... And the BALCO [Bay Area Laboratory Co-Operative baseball steroids] case is pending and those reporters [Mark Fainaru-Wada and Lance Williams from the San Francisco Chronicle] are facing jail, and a young blogger [Josh Wolf] is in prison. It sounds like there's a concerted effort, particularly on the [part of the] federal government, to squeeze reporters and to squeeze this privilege.

I wouldn't say a concerted [effort]. I would stop there. I would say the atmospherics have changed on this issue. The atmospherics are that I think prosecutors, having to meet and talk about it, would just by reading the papers have the feeling that if the information they want entails subpoenaing a reporter and asking about his source relationship, the climate is much more friendly now to that working than it used to be.

By the way, these prosecutors, they're not getting up in the morning saying, "I'm doing this in order to destroy freedom of the press in America." They're saying, "Why does the reporter get a right to stand in the way between me and catching the bad guy, which is my job?" There are two competing visions of the good here, which is why you need legislation.

 
Judith Miller

Freelance reporter

Judith Miller

This is why I feel so strongly we need a federal shield law, because individual journalists and individual news organizations shouldn't have to be in the situation of deciding like this, on a case-by-case basis, whether or not we're going to go to jail or violate our commitment, ... because the public deserves to have this information, and we need judicial help at this point in achieving that mission.

But how would a federal shield law have helped you? I don't know of anybody who's proposing one that would cover national security information.

Well, the first versions of the measure that was proposed by Sen. [Arlen] Specter [R-Pa.] and Sen. [Christopher] Dodd [D-Conn.] did that. It had virtually an absolute privilege for reporters except in cases of imminent harm to the national security -- not previous harm, but imminent future harm. And I think that might have covered my case. Yes, I do.

 
Norm Pearlstine

Former editor in chief, Time Inc.

Norm Pearlstine

Well, I think that individual organizations have different points of view about the law and whether they're going to obey it. Different organizations have different fact situations that have to be taken into account. ...

The place where we need a united front is in trying to get a federal shield law. That's a place where, in fact, many of us have come together, given all the problems with a shield law, all the hesitations you might have about whether it leads to licensing, all the issues of defining who's a journalist and so forth. ...

But would it even have worked in the federal level, a law? This is allegedly national security. You're going to have to have some out in your shield law.

Well, one of the things you could have litigated at that point was whether, in fact, national security was an issue. As you know, a problem that we had in this case was that we were never able to find out from the special counsel the basis for seeking the information.

 
Dana Priest

Reporter, The Washington Post

Dana Priest

Do you support a federal shield law? Various congresspersons ... have said, "Well, we can't have a shield law if it's going to cover national security and secrets." So it wouldn't necessarily help you, I don't think.

Well, I don't know. ... What I do think the newspapers need to do, though, is they need to find people who can help them in the moments when they have these decisions to make, who can help them think through the various factors.

Those might be people who used to work in the intelligence arena but who are very understanding and supportive of the role of the media, ... and really understand that disclosing something very general like the fact that we're eavesdropping is different than disclosing the actual snippets from a particular intercept. You need to know the difference. ...

 
William Bradford Reynolds

Former assistant attorney general

William Bradford Reynolds

... Why is it important that Branzburg exists if there are 49 states that have shield laws? Why does it matter?

Well, Branzburg is a decision that essentially speaks at the federal level, so whatever shield laws there are at these various state systems that relate to state prosecutions would not apply to a federal prosecution. If Congress had enacted a federal shield law, then that would essentially say, notwithstanding Branzburg, there's ability for reporters to get protection in the federal system. But Congress hasn't done that. ...

What do you think about the federal shield law? ...

... A federal shield law will be a tough sell, I believe, in Congress. ... It would probably have less protection than the wholesale protection that was being sought in Branzburg. But it would not be inconceivable to me if Congress were to enact something like that.

What do I think about it? I'm not sure. I think that it would be something that I would be less comfortable with if it gave the reporters a privilege that said you don't need to testify about a crime that you witnessed, or you don't need to identify a criminal that you ... personally saw committing a crime, because there are laws on the books that ... say it's unlawful if you have knowledge of a crime not to come forward and disclose that. A shield law that sort of went all the way would trump that law for reporters, and I'm not sure why that is a good thing. ... But it strikes me that it could happen, but it would not be wholesale, and to that extent there may be some merit to it, depending on how it's worded.

 
Tom Rosenstiel

Director, Project for Excellence in Journalism

Tom Rosenstiel

What do you think of the prospects for a federal shield law?

I'm not sure what the betting would be on whether we'll have a federal shield or not, but I wouldn't put a great deal of stock in the idea that that shield law is going to make much difference.

There are shield laws all over the country, in different states, and they vary from very good for the press to not being worth much at all for the press. In the political context we're looking at in Washington, I would gather that whatever is passed, if anything is passed, would be in the latter camp.

Given what you said about liberal bias … is President Bush justified in his attitude toward the press?

I think the notion that has become popular, that the press is an illegitimate institution and the mainstream press is just not to be trusted, is really dangerous, really unhealthy for the country generally. I don't think it's wise for politicians to go down that road. It's not constructive criticism, if you will.

The independent press model that we've developed in the United States the last 150 years is really the envy of the democratic world. … What [a partisan press model] would mean is a less professional, a less accurate press, a more opinion-oriented press. And we're not lacking for opinion in the media culture that we have. What we're lacking is on-the-ground, shoe-leather reporting.

But this notion that the press is just another special interest, just a corporate interest, that you should write them off, that objectivity is a joke, and that we should all just sort of assume that the one press is liberal and another press is conservative doesn't serve our political system. It doesn't serve our geography, our political culture, and it's not going to lead to a better journalism. What it will lead to is a kind of fractious marketplace, where it will be hard to know who to trust or what to believe. …

 
David Westin

President, ABC News

David Westin

You testified recently about a shield law for journalists.

Yes, I did.

Why do journalists need a federal shield law? Why should you have special legal privileges? And have you been able to define journalist?

Forgive me for wrapping myself in the Constitution, but the First Amendment gives special protection to journalists. It's not just free speech, it's press. That's a word in the Constitution. It means something.

So as far as determining who is a journalist or not, courts have had to do that since time immemorial. To whom does that privilege apply?

And when you say, "Why should there be special protections?" even if it's not within the words of the First Amendment, it's certainly within the spirit behind the First Amendment, which says that there is a special responsibility, as well as role, that people who are journalists in the press have in our Constitutional form of government. It's not because we're special or we should get special privileges. It's because of what service we do for the American public when we're doing our job properly….

The question is, how big should the protection be? How far should it extend? And whether, in fact, some of the subpoenas that are being exercised now, some of the coercion being applied to reporters goes against at least the spirit of that First Amendment. That's the question for me.

You believe journalists should be protected from subpoenas related to federal grand juries?

I believe firmly that journalists should be required to give information only as a last resort; only in a criminal proceeding of true importance, where there is other reason to believe that there is criminal activity involved. … I do not believe in absolute privilege. There's not an absolute privilege for a lawyer/client or doctor/patient or anyone else. There is no absolute privilege in this country; there have to be some cases where you overcome it. …

The government has subpoenaed reporters from the San Francisco Chronicle for possession of grand jury material.

I know. In BALCO.

Right. Something that your reporter, Brian Ross, does regularly.

Absolutely right. Well, and we've reported on BALCO a fair amount, as well.

Right. If there's a leak investigation and they are the only people who can help identify where that information came from, why shouldn't they testify?

First of all, if you open up that exception for leaks of grand jury [materials], then it'll consume the rule. Because that means every time that the act of leaking itself was a crime, then you just go immediately to the journalists and it's game, set, match. So it swallows the exception.

But my personal view, as I've written about, is if you think about that circumstance as in some of the government leak situations, they have the control over the leak. They can control the material. It's not like it's some private party out there. Let them worry about who they're controlling. Why do they have to go to the journalists for the information? They know who they gave the information to. The grand jury is part of the government. So why on earth are we going to turn to the journalists and put them in the dock and punish them when the one thing you know is they didn't do anything wrong? They didn't violate any criminal laws. And they didn't have control of the information.

But the Justice Department guidelines [for opening a leak investigation], as they already exist, say they have to exhaust all other means until review in Washington provides approval to the local U.S. Attorney to issue that subpoena.

That's absolutely right.

So presumably they've done that. The journalist is the last resort.

First, those don't apply at state and local proceedings; they don't apply to special prosecutors. And most important for me is, who gets to decide? Does the Justice Department, the chief prosecutor get to decide? Or does an independent court get to decide? …

When you leave it to the prosecutor to decide whether it's really important to go after the journalists, the prosecutor almost every time or every time will conclude of course it's important to do it. So that almost is the same as no rule at all. And therefore, I think it's critically important you turn to an independent judiciary -- that's why we have an independent judiciary -- to review that question.

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posted feb. 13, 2007; last updated feb. 27, 2007

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