JURIST Guest Columnist Linda Berger of Thomas Jefferson School of Law, a media law specialist and a former reporter for the Associated Press, says that the indictment of I. Lewis "Scooter" Libby is the latest in a series of setbacks for those who support a federal shield law for journalists...
The latest bad news is the indictment of Scooter Libby, the Vice President's Chief of Staff, on charges of perjury and obstruction of justice. The outcome of the investigation by special prosecutor Patrick Fitzgerald appears likely to undermine key arguments for a federal media shield law. In particular, reports of conversations between Miller and Libby cast doubt on the value of according journalists an absolute privilege to protect the identities of their confidential sources.
Even before the indictment, Fitzgerald's investigation into who leaked undercover CIA officer Valerie Plame's identity to news reporters had led to a crucial piece of bad news from the U.S. Court of Appeals for the D.C. Circuit. In February, the D.C. Circuit ruled against a First Amendment privilege to protect journalists from being compelled to reveal their confidential sources when called to testify before a grand jury.
The D.C. Circuit's decision underlined a significant reversal for the claim of a constitutional journalist's privilege. True, the U.S. Supreme Court had decided in Branzburg v. Hayes, 408 U.S. 665 (1972), that a journalist could not rely on the First Amendment to refuse to testify when questioned by a grand jury. Still, nearly every Circuit that considered the question in the next ten years had found a qualified journalist's privilege. Reversing direction, by the late 1990s, the Fifth Circuit had joined the Sixth Circuit in reading Branzburg literally, and in 2001, the Fifth Circuit held that the First Amendment provided little or no protection for reporters in a grand jury investigation. As of In re Grand Jury Subpoena of Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), the D. C. Circuit agreed.
After that decision, First Amendment protection for a journalist's refusal to name sources seemed unlikely, but the outlook for the federal media shield statutes introduced in Congress seemed brighter. Now, it appears that the ripples from the special prosecutor's investigation may sink the prospects for a federal statutory privilege as well.
The argument for a journalist's privilege rests on the First Amendment value of the media's role in gathering and reporting truthful information. To justify an absolute privilege, the "long run" truth-seeking value of protecting the confidential source must be seen as always outweighing a prosecutor's short-term need to obtain truthful testimony from a reporter. By obtaining Libby's indictment after gaining the testimony of the reporter who protected him, Fitzgerald added a hefty weight to the prosecutor's end of the balance.
Some journalists argued from the beginning that the Valerie Plame story was the wrong one on which to stake a claim of a journalist's privilege. In the Plame story, the confidential sources were not low-level or powerless individuals providing truthful information about wrongdoing by high government officials; instead, the sources were high government officials trying to undermine the credibility of a critic of government policy. The now-revealed ground rules of the relationship between these government officials and reporters has made even long-time supporters of a federal media shield law feel queasy. And no wonder.
Rather than granting confidentiality to sources only when necessary, some reporters apparently assumed that an ongoing, unspoken pledge of blurred attribution was necessary to assure continued access to and relationships with powerful officials. Rather than risking jail to protect someone who would suffer serious consequences if it were known by higher-ups that the source had revealed truthful information, some reporters risked jail to protect White House officials who were actively peddling information. While reporters usually promise confidentiality to persuade a reluctant source to divulge information, it seems likely here that almost nothing could have dissuaded these sources from sharing what they knew. In all these ways, the reporting of the Plame story supports the Branzburg court's observation that a constitutional privilege is unnecessary because "the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena."
These reporter-source relationships seem far removed from those that arose in the early 1970s in a flurry of subpoenas issued by the Nixon Justice Department. In Branzburg, the reporters claiming a privilege had declined to identify sources they used to investigate illegal drug operations in Kentucky and to report on various activities of the Black Panther Party in Massachusetts and California. Although the argument that the First Amendment provided protection for newsgathering was rejected by the U.S. Supreme Court in Branzburg, the journalists there were able to present sources who clearly would not have come forward to talk with reporters absent a pledge of confidentiality. In such cases, journalists can argue with a straight face that testifying or turning over names would turn an independent press into an investigative arm of the government and silence potential future sources. Neither claim can be made here.
How can supporters of a federal journalist's privilege salvage something from this? First, editors and reporters at traditional news organizations must do a better job of living up to their own standards. In 1999, the Committee of Concerned Journalists undertook a three-year study that culminated in the publication of The Elements of Journalism. The book's list of elements begins with journalism's obligation to pursue "journalistic truth," followed by the obligation to pay its "first loyalty . . . to citizens," observe a "discipline of verification," maintain "independence from those they cover," and serve as "an independent monitor of power." In reporting the story of the leaking of Valerie's Plame's identity, some news organizations forgot these requirements.
Second, supporters of a federal journalist's privilege should reconsider whether they can justify an absolute privilege to protect the identities of confidential sources. The legislation now pending in both the House and Senate would provide an absolute privilege to refuse to disclose sources (except in the case of an imminent threat to national security) and a limited or qualified privilege to withhold other information. Given the Fitzgerald investigation, a privilege that cannot be overcome under any circumstances seems unlikely to gain sufficient support.
Finally, because being a well-known White House reporter may be irreconcilably different from being an independent monitor of power, mainstream journalists should support the extension of federal and state shield laws to those who are engaged in the process of journalism but who work in nontraditional media. If nothing else, this year's revelations should remind established news organizations of A.J. Liebling's comment (a favorite of bloggers everywhere) that the only guarantee of a free press is to own one.
Linda Berger is Professor of Law at Thomas Jefferson School of Law in San Diego, California where she teaches legal writing, media law and the First Amendment. She was previously a news reporter for the Associated Press in Washington, D.C.