JURIST Guest Columnist Sandra Davidson, of the University of Missouri School of Law, says that by failing to provide shield protection at the Federal level, the US risks both a chilling effect on investigative journalism and an increased potential for the uncontrolled release of information …

Journalists who are performing their watchdog function need a federal shield law. The experience of James Risen provides an example. In order to gain meaningful protection, journalists arguably need a new argument to augment that of “free flow of information.”

In May, US senators Charles Schumer (D-New York) and Lindsey Graham (R-South Carolina) introduced S. 987, titled “Free Flow of Information Act of 2013.” This is another in a long line of bills introduced over the years to provide a federal shield law to protect journalists from government forcing them to reveal their sources. It proposes a qualified shield law.

On July 12, while announcing “revised media guidelines” for the Department of Justice, Attorney General Eric Holder said: “[W]e continue to support the passage of media shield legislation.” On July 17, the senators amended their bill to incorporate and expand those Department of Justice guidelines.

Two days later, on July 19, the US Circuit Court of Appeals for the Fourth Circuit announced in United States v. Sterling the unsurprising decision that journalist James Risen, who had been subpoenaed to reveal a source, has no constitutional shield. Nor, of course, does Risen have a federal statutory shield. The opinion, written by Chief Judge Gregory Traxler, cited the 5-4 decision in Branzburg v. Hayes to overturn the lower court’s ruling that Risen had a qualified reporter’s privilege.

One of Risen’s sources for his book State of War was former CIA agent Jeffrey Sterling. As the Fourth Circuit said, a grand jury handed down an indictment after finding probable cause that “Sterling illegally disclosed classified information about a covert CIA operation pertaining to the Iranian nuclear weapons operation to James Risen, for publication in a book written by Risen.”

The lower court had said, in part, “Rather than explaining why the government’s need for Risen’s testimony outweighs the qualified reporter’s privilege, the government devotes most of its energy to arguing that the reporter’s privilege does not exist in criminal proceedings that are brought in good faith.” The court thought Risen’s testimony unnecessary, saying in Sterling, “Under the specific facts of this case… the government has evidence equivalent to Risen’s testimony.”

But the Fourth Circuit used Branzburg to side with the government that there is no qualified reporter’s privilege for reporters subpoenaed to provide information to good-faith grand juries. The Court said in Branzburg: “[W]e cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.” As for the argument that sources might dry up without a reporter’s privilege, the court said: “Estimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative.”

Perhaps it is time to consider a new argument for shield law, one other than the “free flow of information” argument the Supreme Court rejected as too “speculative.” The “free flow” argument says that if sources fear that journalists will renege on their confidentiality promise when faced with imprisonment, sources will clam up and information will dry up. Of course, many in government would like sources to do just that: dry up instead of leaking classified information.

But this “free flow of information” argument seems based on an antiquated model-on an old system of communication crushed by technology. No longer is it a question of whether the information will flow. It is a question of how it will flow.

Will information flow to the public after being mediated by professional journalists? Or will sources choose to disseminate information unmediated? In short, will sources dump information onto the Internet without giving it the scrutiny and, in some cases, the careful redaction that responsible journalists give?

This is a problem the government should consider: If sources fear that journalists, pressured by the threat of jail, will reveal their identities, then sources may take the safer route-for them-of anonymously dumping information on the Internet. The information will flow all too freely. It is journalists who will, in a sense, dry up because they will not be bathed in information by their sources. The journalists’ mediating function will be obliterated as unredacted information flows across portals not envisioned by the Supreme Court or anybody else in 1972.

Modern technology stands the “free flow of information” argument on its head. If the journalists’ function of mediating information in responsible ways dries up, the information from sources will arguably flow even more freely; unredacted, unmediated, unleashable once loose on the Internet.

This creates an anomaly: Protection of government secrets might well be enhanced by giving reporters shield protection. If potential leakers (sources) have more confidence that journalists would not be forced by government to reveal sources’ identities, then they might feel more comfortable going through journalists and be less likely to dump unmediated information.

When Daniel Ellsberg went through reporters at The New York Times to leak the “Pentagon Papers,” he perhaps had little choice. It was not that easy to disseminate information in 1971. But now it is easy: Just a little bit of uploading, and the job is done.

Determined leakers do have a choice, but many leakers have still been going through journalists, such as Edward Snowden did with Guardian journalist Glenn Greenwald. Arguably, this is a practice that should be encouraged, given the alternative.

In A Theory of Justice [PDF], philosopher John Rawls espoused a principal that seems applicable when talking about leakers and shield protection-the “maximum minimum” or “maximin.” Basically, Rawls says rational people should aim for the best possible worst-case scenario (the minimum). Here, the maximin entails using journalists as mediators.

The government dislikes leakers. The Obama Administration has used the Espionage Act of 1917 to prosecute them more than has any other administration, and it has been going after journalists such as Risen with an alacrity never before seen in this country.

In May 2011, Attorney General Eric Holder authorized issuance of a subpoena to Risen. The government’s goal? Have Risen identify his source. Note that a federal grand jury had already returned an indictment for violation of the Espionage Act against Risen’s source, ex-CIA agent Jeffrey Sterling, in December 2010 without Risen’s disclosing him as a source. The indictment included details of phone conversations and email exchanges between Sterling and the unnamed journalist.

Another Risen source indicted without Risen having identified him is Thomas Drake, a former National Security Agency senior executive. Late in 2005, reporters Risen and Eric Lichtblau wrote in The New York Times that the NSA was violating US law through warrantless eavesdropping on US citizens’ phone conversations. Reportedly, Bush Administration officials met with Times editors prior to publication, trying to get the story spiked. Instead, the story got delayed for a year, until after the 2004 presidential election. The published story said it omitted “some information that administration officials argued could be useful to terrorists.”

A Maryland grand jury indicted Drake. The government sought his conviction on ten felony charges, including violating the Espionage Act, but ultimately Drake pleaded guilty to a single misdemeanor charge of exceeding authorized use of a government computer. Under the agreement, Drake received no jail time. On July 15, 2011, from the bench, Judge Richard D. Bennett called it “unconscionable” for the government to put Drake through “four years of hell” before folding on all felony charges.

If leakers such as Sterling, Drake, and Snowden go to journalists, that is not the best scenario from the government’s perspective, but it is definitely not the worst, either. The worst scenario is leakers posting their material directly online with no professional intermediary.

In short, Rawls’ “maximin” in this situation is leakers leaking to professional journalists instead of posting leaks directly online without mediation.

To encourage leakers to go through journalists, we need absolute shield protection.

We need an absolute shield, not a qualified shield that lets judges do balancing. Judith Miller spent 85 days in jail when she refused to name the source in the Valerie Plame CIA-outing case. She had not even used the name in a story. Two opinions made clear Miller would have gone to jail despite balancing. Judge Thomas Hogan said [PDF] in Miller’s case: “[T]he Court of Appeals … echoed this Court’s conclusion that the Special Counsel’s ex parte evidentiary submission would be able to meet even the most … stringent of balancing tests.” Professional “watchdog” journalists should be encouraged, not subpoenaed. Where the watchdog is dead or chained up so it cannot function, information will still flow. But then the flow will be more like a surge of storm water than like a more tempered flow that has been filtered through professional journalists.

Sandy Davidson is Professor at the University of Missouri School of Journalism and Adjunct Professor at the University of Missouri School of Law, both in Columbia, MO. An expert on the relationship between media and law, she has written extensively on the need for freedom of information. She has been a panelist for the Information Policy Taskforce of the National Conference of State Legislatures, and the Associated Press Managing Editors, among other groups.

Suggested Citation: Sandra Davidson, Failing to Provide Shield Protection Risks Chilling Investigative Journalism , JURIST – Forum, September 16, 2013, http://jurist.org/forum/2013/09/sandra-davidson-shield-law.php