Notes at Issue

TERENCE SMITH:

Vanessa Leggett has spent most of the last month in a federal detention center in Houston, Texas, on contempt-of- court charges. Leggett was jailed July 20 for refusing to hand over to a federal grand jury notes and research gathered during her four-year investigation of a sensational Houston murder. She could be detained for up to 18 months. In an interview with ABC's "Good Morning America," Leggett said she stands on principle.

VANESSA LEGGETT:

I made promises to people to keep their… Keep what they told me confidential. The people would have never given me that information if they had known or thought that the government would ever get their hands on it.

TERENCE SMITH:

Leggett says she is planning to publish a book, entitled "Million Dollar Murder," about the 1997 murder of Doris Angleton. The victim's husband, Robert Angleton, a millionaire sports bookie, was charged with paying his brother, Roger, to kill her. Roger committed suicide in prison after confessing that he acted alone. Leggett conducted hours of interviews with Roger before his death.

Robert Angleton was subsequently acquitted in a state trial. Leggett did provide some material to prosecutors in that case. Federal prosecutors convened the grand jury to investigate Robert Angleton on other grounds. Leggett, a college lecturer and freelance writer, argues that she is a journalist, and therefore, is entitled to protection. Houston officials argue that she is not a bona fide journalist.

CHUCK ROSENTHAL (Harris County District Attorney):

This is someone who has… Has been a court groupie and has, you know, followed cases and things like that — doesn't necessarily make them a journalist.

TERENCE SMITH:

Thirty-one states and the District of Columbia have so- called shield laws that protect journalists from having to disclose confidential sources, and from having to hand over unpublished or unaired material to the government. Texas has no such law.

Yesterday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit heard arguments on whether Leggett enjoys special journalistic protection in the circuit's jurisdiction covering Texas, Louisiana, and Mississippi. Judge Grady Jolly, openly skeptical of Leggett's claims, said: "When the press stands before a grand jury in a criminal proceeding, the press stands on the same footing as anyone else." Many national news organizations have petitioned the court on Leggett's behalf. The panel will issue an opinion next week.

TERENCE SMITH:

For more on the Leggett case and its implications we turn to two lawyers who have been monitoring it closely. Lucy Dalglish is the executive director of the Reporters Committee for the Freedom of the Press, which is supporting the Leggett defense. And Bruce Fein is general counsel for the Center for Law and Accountability.

He also served as associate deputy attorney general in the Reagan administration. The Justice Department declined to comment on its investigation, and a NewsHour request to interview Vanessa Leggett today was denied by the warden at the federal detention center in Houston. Welcome to you both.

Bruce Fein, is Vanessa Leggett entitled to some sort of protection or is she required, as you read the law, to simply turn….

BRUCE FEIN:

I think it's been rather unambiguous for, oh, close to 30 years, that the press, as was indicated in the oral argument in the Fifth Circuit, is entitled to no more nor less protection than an ordinary citizen or indeed a President of the United States, as we all know from the Clinton Whitewater investigation and Richard Nixon Watergate tapes, to their evidence if it's pertinent to a criminal investigation, not for the purposes of harassment and the court had made quite clear that the government can choose that it's better to do something about crime than to write about it.

TERENCE SMITH:

Your point of view, no choice.

BRUCE FEIN:

Correct.

TERENCE SMITH:

Lucy Dalglish what are the grounds on which she can withhold?

LUCY DALGLISH:

It depends on what part of the country you're dealing with, but generally speaking in the Fifth Circuit, it's… She has a hard battle to fight.

TERENCE SMITH:

Because it's a very conservative circuit.

LUCY DALGLISH:

It's a very conservative circuit, and the law of… shield law… Or the law of the reporters' privilege is not as highly developed in the Fifth Circuit as it is in other parts of the country. Typically what would happen in other circuits is a court would decide whether or not the evidence that she has is material to what they're doing, whether or not it's relevant and whether or not it can be found from any other alternative sources. If the answer to all of that is no, they can't get it any other way and they have to have it, then she would be required to turn it over. The law is not that clearly developed in the Fifth Circuit, and that's one of the reasons why she's in jail.

BRUCE FEIN:

I think, however, to add a footnote, is that balancing test as a constitutional matter is characteristically limited to civil cases when such information is sought. In the Supreme Court's definitive rulings when it's criminal evidence that's sought, there was no balancing test was required by the court at all.

TERENCE SMITH:

Lucy Dalglish, you're shaking your head.

LUCY DALGLISH:

Well, it's not that clear. What we're talking about is the case that determined whether or not journalists have a reporter's privilege was in 1972 and it was called Branzburg versus Hayes. It's one of those opinions that lawyers just love and the public can't quite fathom. It was a 4-1-4 split. And the dissenters said there should be this balancing test. Justice Powell was in the middle. He said, well, maybe under some circumstances there should be including criminal cases and the other four Justices said absolutely no privilege. So it's about as clear as mud, which is why you have fragments circuits all over the country.

TERENCE SMITH:

Bruce Fein, there is a ruling in the Justice Department. In fact, you had a hand in writing it– that says just what?

BRUCE FEIN:

This is not a ruling but it's a regulation that the Department of Justice crafted to try to go beyond what the Constitution required to accommodate bona fide press interest. And basically what the regulation says is what you've said has been used in the civil cases that before a newsman is subpoenaed, you need to get an attorney general to approve. There has to be a reasonable showing that alternate methods wouldn't reveal the information. It can't be an investigation into expectorating on the sidewalk.

It has to be a serious issue and the evidence sought is not likely to be marginal but some direct relevance to the nature of the crime. And that is something that the Department has imposed on itself and it's clear that so long as the regulation exists, the Department must apply it in good faith. It's not absolutely clear, however, how some of these terms can be applied. For instance, alternate sources — alternate methods — does that mean you have to try to infiltrate a group? Does it mean you have to expend resources as though you are chasing Osama bin Laden? Those things are very subjective evaluations.

Therefore I don't know of any case where the department has been held in violation of its own regulation in saying, well, this subpoena is issued properly. Although it is fair to say, I think, for the more than two decades it's been in place the Department has been very reluctant ever to subpoena newsmen.

LUCY DALGLISH:

Well, I don't think… I think it's not very clear at all that they followed those guidelines in this case.

TERENCE SMITH:

Why do you say that?

LUCY DALGLISH:

Because, they're claiming she's not a journalist. That sort of implies to me that they didn't apply their own test because them didn't consider her to be a journalist.

TERENCE SMITH:

That raises the obvious question. Who is a journalist and how do you define it and who defines it?

LUCY DALGLISH:

Well, I can answer the last question first. The last person I want to be deciding who a journalist is somebody in the government. I know that Vanessa Leggett is a journalist. She was out there working on this story. She was collecting information with the idea of disseminating it to the public. In my mind she did the requisite research needed. She had the intent to publish a book.

In my mind also part of the story that… I mean, this is a fascinating case. Along the way several months ago the FBI came to Vanessa Leggett and said, you're writing a book…hmm. You have access to these people. How would you like to work undercover for us, collect this information and turn it over to us? So obviously at that time in their mind she was a journalist or at least they knew she was trying to act as a journalist. But now they're saying in other published on-the-record statements well she's not really a journalist. I don't think they can have it both ways.

TERENCE SMITH:

Does it matter?

BRUCE FEIN:

Well, it matters in some sense in that in applying the regulations you've got to be a journalist for the Supreme Court's decision, however, it's irrelevant. Whether you're a journalist or not you have to give over your evidence. Now I remember in the aftermath of these cases there are repeated efforts in Congress to write a federal newsman shield statute and the issue of how to define a journalist was a sticking point. It was never resolved because there really aren't any clear earmarks there — one of the reasons why the statute has never passed. But you have to enable the government at least in the first instance to make an evaluation in order for there to be subject to review. So obviously the final decision-maker would be a court.

TERENCE SMITH:

Now an agent in New York has told us that… Told the NewsHour that he has in hand some six chapters of this book, some 80 pages. Does that a journalist make? In other words, there's a body of work there. Is that the evidence on its face of a journalist?

BRUCE FEIN:

Not necessarily because we don't ordinarily equate someone who writes books as a journalist.

TERENCE SMITH:

Let me ask you about that. Is a writer a journalist?

LUCY DALGLISH:

Absolutely. In fact in the 9th Circuit there's a case called Schoen, and that involved a case where they recognized a reporter's privilege. That involved a book author. There are numerous cases out there.

TERENCE SMITH:

What do you know about this book and what kind of book… it's non-fiction.

LUCY DALGLISH:

I would describe it as a non-fiction sort of the true crime genre that often times get made into movies of the week, something on the order that you might expect a writer such as Dominic Dunn or Mark Furman to write. She's interviewed a lot of law enforcement people. She's interviewed people who knew the Angleton family. And I'd say she's trying to write an accurate non-fiction account of what happened and what went down in this whole situation. It's like there's really no difference in substance from a newspaper story. It's just going to be a heck of a lot longer.

TERENCE SMITH:

Any difference in substance, Bruce?

BRUCE FEIN:

I think there is a difference because we typically associate journalists with someone who needs to promise confidentiality to get the information and news out fast. Now, I'm not denying that for purposes of constitutional analysis, a book writer would seem to me to have as great a claim as a newsman. Whether or not under the regulations issued by the Department of Justice she's a newsman is quite a different matter than the general constitutional question.

TERENCE SMITH:

Let me ask you this. Is it significant from the Justice Department point of view the way this case is being handled, is there anything broader under this Justice Department, under this attorney general, John Ashcroft, in the way this is being handled? Does it suggest to you a change in policy?

BRUCE FEIN:

No, I don't think that the application here is different than under Democrat administrations or Republican administrations. I think there have been grievances that the press has made have persisted throughout the regulations since they were given birth. But there's one thing I'd like to add here to show, you know, the breadth of the claim being made — that the writer decides whether there's a privilege that once you pledge on anonymity, then you're shielded.

Suppose what happens in a case that a book writer, a journalist receives information from an anonymous source that someone on Death Row is innocent and, in fact, the source says somebody else was guilty of a crime and there's a grand jury investigation out to see whether or not maybe there was somebody else who was guilty. You're going to tell me that a grand jury doesn't have a right to find out evidence that an innocent person may go to the death chamber?

LUCY DALGLISH:

But that's not the way it's going to come down. It's not going to come down as confidentiality. It's going to be published. And the journalist is going to get that information out there and the whole… All of the public is going to know about it. There's no reason to keep it secret after that.

TERENCE SMITH:

Lucy Dalglish, let me ask you, what are the implications of this case? Regardless of how it's decided in the short run?

LUCY DALGLISH:

Well….

TERENCE SMITH:

For journalists, journalism?

LUCY DALGLISH:

Well it has huge implications particularly for anyone trying to practice journalism in Texas, Mississippi and Louisiana.

TERENCE SMITH:

The Fifth Circuit.

LUCY DALGLISH:

You know, this is involving a book author here. But one of the reasons the nation's media has gotten together behind this case is because they're going to have to live with whatever the Fifth Circuit comes up with next week.

BRUCE FEIN:

But I would just add these claims that anonymous sources will dry up and our access to information will wither all were made in Branzburg versus Hayes. That's the case denied a newsman privilege engendered by the U.S. Supreme Court. Despite that decision, on the heels came Watergate, Iran-Contra, Whitewater, leaks pour out all the time and I don't know of anybody who says, gee, if it weren't for, you know, the lack of a privilege has withheld all this very critical information for us to be a self-governing people.

The fact is that in virtually every instance, despite what Vanessa said that this source wouldn't have given the information about their promise, that there are other motives that cause people to tell what they think want to get into public print even with a risk that a grand jury would ask for us.

TERENCE SMITH:

Final word, Lucy Dalglish, very briefly.

LUCY DALGLISH:

Very briefly, you know, we've documented over the last ten years that an excess number of subpoenas really does have a chilling effect on the media. If anybody is interested they can find our report at www.rcfp.org. And it's called Agents of Discovery. It will give you all the information you want to know about the chilling effect.

TERENCE SMITH:

Thank you both very much.