The scary thing to note about this year's list is that nearly half of all the imprisoned journalists work for online publications. That means two things: one, bloggers and online media outlets are becoming more formidable channels of news distribution; and two, with that new-found power comes a certain vulnerability to the insecurities authoritarian states.
The US isn't on the list this year. With The Cheney-Bush regime checking out, here's hoping we won't be again. China is shamefully way ahead of the pack (28 jailings), with Cuba (21) and Burma (14) coming in second and third.
Following is a paper I wrote in college about reporters' rights. My interest in the subject was triggered by the 2005 jailing of New York Times reporter Judith Miller.
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Shielding Journalists: A Question of Reportorial Privilege
To date, more than thirty state legislatures have passed some version of a shield law to protect journalists’ right to maintain source confidentiality. Shield laws, in their various incarnations, complement the protections already set forth in the First Amendment of the United States Constitution. Throughout American history, the government has periodically checked the special considerations afforded to members of the press. Many people alive today would recall the journalistic crises instigated by the Nixon administration in the early 1970s. Now, as situations like New York Times reporter Judith Miller’s recent incarceration are forcing courts and legislative bodies at all levels of government to reexamine the issue of reportorial privilege, a new generation of Americans stands witness to what seems to be a cyclical impasse plaguing lawmakers and the media – namely, federal protection for journalists’ right to maintain source confidentiality.
Historical Overview & Development of the Law
Conflicts between members of the press and the government regarding reportorial privilege have arisen since colonial times. In 1896, one such skirmish provoked the Maryland legislature to become the first in the United States to pass a law protecting journalists’ rights. John Morris, a Baltimore Sun reporter, spent two days in jail after refusing a grand jury’s order to identify his sources in a story about corrupt officials. The resulting Maryland shield law prohibited the issuance of subpoenas for journalists’ confidential sources (Siegel).
In the 1920s and 1930s, the issue flared up again after ten reporters from around the country spent time in jail for refusing to comply with grand jury subpoenas for confidential source information. Although the courts refused to acknowledge a “reporter’s privilege,” the public outcry of sympathy for the incarcerated reporters prompted ten state legislatures – including California – to enact statutory protection for journalists (Siegel).
Relatively few journalists were prosecuted again until, in 1970, grand juries under the Nixon Administration began issuing dozens of subpoenas to journalists (Siegel). The U.S. Supreme Court granted writs of certiorari to lower court rulings in Branzburg v. Hayes and Meigs, In re Pappas, and United States v. Caldwell, which involved reporters from Kentucky, Massachusetts, and New York who had been issued grand jury subpoenas. Encompassed under the style Branzburg v. Hayes, these cases allowed the Court for the first time to engage in debate about journalistic privilege to refuse to testify before a grand jury. In a 5-4 split, the Court declined to quash the subpoenas (Branzburg). Writing the majority opinion, Justice Byron White stated, “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not” (Branzburg).
The first petitioner under Branzburg was Paul Branzburg, a reporter for the Courier-Journal in Louisville, Kentucky. Branzburg petitioned the court to review rulings from the Kentucky Court of Appeals regarding separate subpoenas served on him by Jefferson and Franklin County grand juries. The Jefferson County subpoena followed a story Branzburg had written in November of 1969 about two youths synthesizing hashish from marijuana. Branzburg refused to answer the grand jury’s questions based on rights he claimed were afforded by the First Amendment, the Kentucky Constitution, and the Kentucky Reporter’s Privilege Statute. A trial judge rejected all three of Branzburg’s arguments. The Kentucky Court of Appeals upheld the lower court’s ruling, stating the Kentucky Reporter’s Privilege Stature does not allow reporters to refuse to testify about events they witnessed or the identities of actors involved in such events. With respect to Branzburg’s claim to First Amendment protection, the appellate court held that the reporter abandoned this argument upon submitting a memorandum in which he urged the employment a broad interpretation of the phrase “source of any info” embedded in the Reporter’s Privilege Statute. Branzburg reasoned that a broad interpretation would render irrelevant discussion of First Amendment privilege, though he never rejected such protection (Branzburg).
Branzburg also petitioned the U.S. Supreme Court to review the Court of Appeals’ rejection of a motion to quash the Franklin County grand jury’s subpoena. After writing a 1971 story about the drug culture in Frankfort, Kentucky, Branzburg found himself again the target of governmental scrutiny. Once more, Branzburg brought his case to the Court of Appeals, which, in turn, reiterated its construction of the Reporter’s Privilege Statute and denied the motion to quash. The Supreme Court agreed to review this case based on what it viewed to be the lower courts’ misreading of Branzburg’s memorandum (Branzburg).
The second case under Branzburg, In re Pappas, involved a Massachusetts television news photographer. Pappas worked for a New Bedford, Massachusetts, television station. On July 30, 1970, he attended an afternoon press conference at Black Panther headquarters. Pappas returned to headquarters later that evening in hopes of documenting an anticipated police raid. The police never arrived, and, as a result, he never produced a story. Still, a Bristol County grand jury issued Pappas a subpoena to discuss what he saw inside headquarters. Though he appeared and answered questions as to his name, job, and address, Pappas claimed a First Amendment privilege from responding to inquiries about what happened in headquarters. The grand jury issued him another subpoena, for which a trial judge rejected a motion to quash based on Massachusetts’ lack of statutory protection. The Superior Court reported the case to the Massachusetts Supreme Judicial Court [SJC] for an interlocutory ruling. Citing precedent, the SJC held that the public’s interest in hearing every person’s evidence generally prevails over other interests (Branzburg). Affirming past Massachusetts holdings, the SJC stated, “… the obligation of newsmen… is that of every citizen… to appear when summoned, with relevant written or other material when required, and to answer relevant and reasonable inquiries” (In re Pappas qtd. in Branzburg).
The third case under Branzburg, United States v. Caldwell, involved a United States attorney who petitioned the Court to review a federal Court of Appeals’ holding that New York Times reporter Earl Caldwell enjoyed a First Amendment privilege from providing testimony to a federal grand jury. Relying on the principle that confidentiality breeds trust, the Court of Appeals maintained that forcing journalists to testify necessarily would inhibit the flow of information to the general public (Branzburg).
Caldwell had covered anti-establishment groups in America since the 1960s. He focused mainly on black militant groups like the Black Panthers. In February of 1970, a federal grand jury in the Northern District of California issued Caldwell a subpoena duces tecum, which requires the summoned party to produce all materials related to the inquiry. In this case, the grand jury wanted access to Caldwell’s notes and recorded interviews with members of the militant groups. Caldwell objected to the vast scope of the subpoena and was granted a continuance before being issued a revised subpoena. The second subpoena required only Caldwell’s testimony, but the Times still filed a motion to quash supported by amicus curiae briefs and affidavits from other members of the media. In opposition to the motion to quash, the government filed three memoranda detailing the grand jury’s intention to investigate possible criminal acts (Branzburg).
The District Court denied the Times’ motion to quash the following April, though it recognized Caldwell’s First Amendment right to withhold the identities of confidential sources. Shortly after this action, the grand jury’s term expired. Once a new grand jury had convened, Caldwell received a second subpoena to testify. The reporter refused to appear before the grand jury and was thus “ordered committed for contempt until such time as he complied with the court’s order or until the expiration of the term of the grand jury” (Branzburg). Caldwell appealed the decision, and the United States Court of Appeals for the Ninth Circuit recognized a qualified privilege for journalists embodied in the First Amendment. In justifying its holding, the Court stated that “absent some special showing of necessity by the Government, attendance by Caldwell at a secret meeting of the grand jury was something he was privileged to refuse because of the potential impact of such an appearance on the flow of news to the public” (qtd. in Branzburg).
In 1972, the U.S. Supreme Court, on certiorari, affirmed the holdings of the Kentucky Court of Appeals and the Massachusetts SJC and reversed the Ninth Circuit Court of Appeals’ reversal of the District Court’s contempt order. The majority opinion held that the First Amendment did not provide journalists with special protection from appearing before and responding to inquiries from a grand jury. Refuting the constitutional appeals of Branzburg’s reporters, the opinion states, “Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do” (Branzburg).
Although the Court declined to impose as common law federal privileges for journalists, it referenced the various other institutions – federal and state – to which the media could look for protection. The majority opinion spoke directly to the power of Congress to enact and adapt legislation according to societal and temporal dictates. Moreover, the Court addressed the necessary ability of states to interpret their own constitutions and recognize reportorial privileges within the First Amendment as they see fit. Addressing concern that its holding could promote the use of journalists as investigative tools, the Court referred to the Department of Justice’s Guidelines for Subpoena to the News Media, which requires the government to satisfy established procedural mandates before subpoenaing journalists (Branzburg).
Justice Lewis Powell filed a concurring opinion in which he qualified the majority opinion “to emphasize what seem[ed] to [him] to be the limited nature of the Court’s holding” (Branzburg). Powell further elucidated his point, conceding, “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources” (Branzburg). Powell’s concurrence outlined a three-prong test by which information being sought from journalists must be shown to be materially relevant to the case, unavailable through other exhausted means, and of compelling interest (Eun). Justice William Douglas dissented based on his belief that journalists enjoy an absolute privilege against testifying before a grand jury. Justice Potter Stewart, joined by Justices William Brennan and Thurgood Marshall, filed another dissenting opinion based on a societal value for the full and free flow of information to the American people (Branzburg).
An initial uneasiness lingered over the country in the wake of the Branzburg decision. In shifting control to the states and Congress, the Court could have effectively opened the door for widespread imprisonment of journalists (Siegel). But for several reasons, this did not happen. The Watergate scandal that effectively ended Nixon’s presidency left the country deeply distrustful of the government. Washington Post reporters Bob Woodward and Carl Bernstein would not have been able to expose the extent of the Nixon Administration’s corruption without the information of a confidential source known by the pseudonym “Deep Throat.” Mark Felt, the third and then second highest ranking member of the Central Intelligence Agency during the Nixon Administration, identified himself as Deep Throat in 2005 (Payne).
The effectiveness of Woodward and Bernstein’s reporting, coupled with a decidedly anti-government attitude among Americans, prompted ten more states to pass shield laws. Complementing these statutory protections was the lower courts’ formation of decisions based not on the majority Branzburg opinion, but on Justice Powell’s concurrence. For roughly thirty years, “federal circuit courts, as well as state courts, have generally found that a qualified privilege exists ‘where the need for the information is less compelling’” (qtd. in Eun).
Following a wave of subpoenas for journalists’ testimony and/or material in 2004 and 2005, the popular interpretation of Branzburg in the decades since the ruling is worrisome for journalists and lawmakers alike. The shift in interpretation can be linked to a 2003 ruling from a federal appeals court judge named Richard Posner. According to New York Times reporter Adam Liptak, “Judge Posner wrote that lower courts had often misread and failed to follow the [Branzburg decision], which rejected First Amendment protection for reporters facing grand jury subpoenas” (Liptak). Since this decision, courts across the country have begun adhering more closely to Justice White’s articulation of the Branzburg majority opinion. The result of this has been the issuance of contempt citations to a number of journalists, at least six of which have resulted in jail time. The Times’ Judith Miller is perhaps the most prominent of the six.
In February 2002, former United States ambassador Joseph Wilson traveled to Niger at the behest of the CIA to investigate reports that Iraq was trying to procure uranium in the region. Wilson reported the intelligence to be unfounded when he spoke to government officials upon returning from the trip. Despite this, the 2003 State of the Union address included the misinformed statement, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa” (Bush). President Bush’s assertion – admittedly attributed to the British government – stood in direct opposition to Wilson’s findings, and he expressed as much in a July 2003 New York Times editorial entitled, “What I Didn’t Find in Africa.” Three days later, the syndicated columnist Robert Novak wrote an article in which he claimed that Wilson’s trip was the result of nepotism and of questionable merit (Eun).
Wilson’s wife, Valerie Plame, was a covert CIA operative. This information was contained in a State Department memo to which the president was in close proximity around the time Wilson’s editorial ran. Novak identified Plame as both a CIA agent and Wilson’s wife in print. He claimed to have received the information from two senior administration officials (Eun).
On July 6, 2005, Judith Miller was jailed for refusing to reveal the name of a source in connection to the Plame case, although she never wrote an article about it. After 85 days behind bars and having obtained a confidentiality waiver from her source, Vice President Cheney’s former Chief of Staff I. Lewis Libby, Miller was released on September 29, 2005. She spoke to the grand jury on October 1 and 12, 2005. Following her last appearance, Judge Hogan removed Miller’s contempt citation (Miller). On October 29, the grand jury indicted Libby on charges of making false statements, perjury, and obstructing justice (Stockton).
On November 17, 2005, Washington Post Assisting Managing Editor and Watergate legend Bob Woodward announced that he, too, had been told Plame’s name by a high-ranking member of the Bush Administration. Though his source does not want to be publicly identified, s/he did allow Woodward to speak to special prosecutor Patrick Fitzgerald. Woodward has said only that Libby was not his source, a disclosure that indicates Plame’s name could have been widely known among top Bush Administration officials (Kurtz). The complicated and continuing developments of the Plame scandal have made murky and already fuzzy issue.
State of the Law
As it stands, no protections outside of the First Amendment – which simply states that “Congress shall make no law… abridging the freedom of speech, or of the press” (US Const., Amend. I) – exist on the federal level. The First Amendment, as interpreted in the Branzburg ruling, does not encompass a testimonial privilege for journalists. As previously mentioned, lower courts on the state and federal levels have generally looked to Justice Powell’s concurrence in Branzburg as the precedent. This trend seems to be losing popularity of late.
But states have been more willing to enact protections for journalists. To date, thirty states have established statutory privileges for journalists. Of these, sixteen afford absolute protection. California is one such state.
California’s shield law, enacted in 1935 and written into the state constitution forty-five years later, provides that “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press” (Calif. Const., art. 1, sec. 2a). In terms vague enough to allow for interpretation, the statute protects “a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed” (Calif. Const., art. 1, sec. 2b). The protection similarly extends to television and radio journalists. The broad terminology suggests non-staff reporters, including freelancers and stringers, could be protected under the statute (First).
The California statute protects the aforementioned parties from being forced “to disclose the source of any information procured while so connected or employed for publication” or “to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public” (Calif. Cont., art. 1, sec. 2a). The statute explicitly protects a reporter’s source of information, any of the reporter’s materials, and “data of whatever sort” that were obtained as part of the newsgathering process (Calif. Const, art. 1, sec. 2a).
Since the California shield law is included in the state constitution, no statutory exceptions exist. However, the California Supreme Court ruled that, should a defendant’s Sixth Amendment right to a fair trial supercede a journalist’s constitutional right to not comply with subpoenas, the journalist can be forced to testify. In 2000, the California legislature added a section to the California Code of Civil Procedures providing that journalists be given five days notice before compelling testimony (Burke).
The scope of protection afforded by other states’ statutes varies. The majority of the states without absolute protection employ some version of the three-prong test to prevent harassment of journalists outlined in Branzburg. Others, however, are tailored differently. New Mexico and North Dakota, for example, require only that information sought from journalists be necessary to prevent injustice. Michigan’s statute is absolute except for when pertinent to investigations of crimes punishable by life (Committee).
In addition to the thirty states with statutory protection, fourteen others recognize some sort of reportorial privilege through court decisions. In the 1970s, six states acknowledged a common law protection for journalists. Three more states followed suit in the 1980s. In the 1990s, five states, including Massachusetts, continued the trend. Massachusetts is noteworthy because State Senate President Robert Travaglini filed a bill in October 2005 to create a shield law (Ranalli).
The courts have recognized testimonial privileges in other professions. In 1996, the U.S. Supreme Court ruled in Jaffee v. Redmond that “confidential communications between patient and psychotherapist… [are] privileged from compelled disclosure under [Federal Rule of Evidence 501]” (Jaffee). Rule 501 states:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness, person, government, state, or political subdivision thereof shall be determined in accordance with state law (FRE 501).
In Jaffee, the Court held that Rule 501 allowed for common law recognition of psychotherapist-patient confidentiality because of the benefit to society posed by such special consideration. By the same logic, it can be argued that recognition of a journalist-source privilege would effect a similar societal good (Committee).
In February 2005, Congressmen Mike Pence (R-Indiana) and Rick Boucher (D-Virginia) cosponsored the Free Flow of Information Act (FFIA). Senators Richard Lugar (R-Indiana) and Christopher Dodd (D-Connecticut) also cosponsored the bill. Neither the House nor the Senate decided to take up FFIA in 2005 (Brooks).
Following the introduction of the FFIA in 2005, several federal legislators threw their weight behind a proposed federal shield law. FFIA, which is not absolute in its terms, nevertheless provides for certain procedural requirements to be met before a journalist can be lawfully subpoenaed. The procedures highlighted are similar to the three-pronged tests outlined in Justice Powell’s concurring opinion in Branzburg.
Conclusion
Given the cyclical nature of this grave social problem, it is difficult to forecast with any reasonable certainty the impending developments of the law. This much is clear: the inconsistent application of the Branzburg decision has caused the sand storm currently ravaging the media landscape. At the moment, journalists and lawmakers stand on incompatible planes of existence. The role of a free press in a functioning democracy cannot be contested. The federal government might look to state statutes like that of California for guidance when deciding how to address this inescapable problem.
Works Cited
Branzburg v. Hayes. No. 70-85. Supreme Ct. of the US. 29 June 1975.
Brooks, Rosa. “Too Broad a Shield; Journalists Need Some Protection for their Sources. But a Proposed Law Would Shelter Criminals As Well.” Los Angeles Times 22 Oct. 2005: 19. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 1 Dec. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
Burke, Thomas R., and Rochelle L. Wilcox. “Notice Requirements Help Journalists Facing Abusive Subpoenas.” DWT LLP: First Amendment Law Letter Winter 2002. http://www.dwt.com/related_links/adv_bulletins/CMITWinter2002.htm#b2.
Bush, George. “State of the Union Address.” The United States Senate, Washington, D.C. 28 Jan. 2003.
California Constitution Art. 1, Sec. 2.
Committee on Communications and Media Law of the Association of the Bar of the City of New York. “The Federal Common Law of Journalists’ Privilege: A Position Paper.” The Record of the Association of the Bar of the City of New York 2005. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 2 Dec. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
Eun, Eunnice. “Journalists Caught in the Crossfire: Robert Novak, the First Amendment, and Journalist’s Duty of Confidentiality.” American Criminal Law Review Summer 2005. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 25 Nov. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
First Amendment Project: Protecting Unpublished Information and Confidential Sources. 2005. 22 Nov. 2005. http://www.thefirstamendment.org/shieldlaw.html.
Jaffee v. Redmond. No. 95-266. Supreme Ct. of the US. 13 June 1996.
Kurtz, Howard. “Woodward Talks of Admission, Apology; Author Says He Realized He Would Be ‘Dragged into This.’” The Washington Post. 22 Nov. 2005: A09. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 25 Nov. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
Liptak, Adam. “Courts Grow Increasingly Skeptical of Any Special Protections for the Press.” New York Times 28 June 2005: 16. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 25 Nov. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
Miller, Judith. “My Four Hours of Testifying in the Federal Grand Jury Room.” New York Times 16 Oct. 2005: 31.
Milton, Pat. “Time Magazine Turning over Reporter’s Notes Today.” Associated Press State and Local Wire 1 July 2005, BC Cycle. Lexis-Nexis. Scarborough-Phillips Library, Austin. 16 Sep. 2005 http://web.lexis-nexis.com.
Payne, Les. “Now We Can Reveal the Real Deep Throat.” Newsday 3 July 2005: A41. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 25 Nov. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
Ranalli, Ralph. “Senate President Proposes a Shield Law; Bill Seeks to Guard Identity of Sources.” Boston Globe. 26 Oct. 2005: B2. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 25 Nov. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
Siegel, Nathan. “Our History of Media Protection.” Washington Post 3 Oct. 2005. 22 Nov. 2005 http://www.washingtonpost.com/wp-dyn/content/article/2005/10/02/AR2005100201237.html.
Stockton, Paysha. “Wilson, at NU, Asks Newspaper to Probe Reporter’s Role in Leak.” Boston Globe 22 Nov. 2005: B3. LexisNexis Academic Search Page. LexisNexis. Scarborough-Phillips Library at St. Edward’s U, Austin, TX. 2 Dec. 2005 http://web.lexis-nexis.com.ezproxy.stedwards.edu:5000/universe/form/academic/s_guidednews.html.
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