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Protecting reporters' privilege?
Evaluating the effectiveness of the Free Flow of Information Act of 2006

By Alicia Armbruster
First Amendment Center intern

Summary: Since 2003, news reporters have faced an increasing threat of being subpoenaed to testify in federal court. Congress has tried to remedy the problem by proposing reporter’s-privilege legislation, the latest of which is the Free Flow of Information Act of 2006 (see comparison chart of bill versions). Eleven experts responded to interview questions regarding the legislation. Their aggregated responses suggest that the Free Flow of Information Act of 2006 effectively protects reporters who protect their sources.

New York Times reporter Judith Miller was jailed for 85 days because she refused to disclose the source of her information on the Valerie Plame CIA leak case to a federal prosecutor, Patrick Fitzgerald. Since a 2003 decision by the 7th U.S. Circuit Court of Appeals, written by Judge Richard Posner, many reporters across the country, like Miller, are facing the same choice: Reveal the name of someone to whom you promised confidentiality or go to jail for contempt of court.

Although every state except Hawaii and Wyoming has either a shield law or common law that protects “reporter’s privilege” in state courts, those laws do not provide protection in federal courts. Prosecutors, defendants and civil litigants in federal cases all have the ability to subpoena reporters to testify about their confidential communications.

Congress has ventured to remedy the problem by proposing a shield law that will protect reporters at the federal level. In 2004, Sen. Chris Dodd, D-Conn., introduced the first contemporary bill on the issue. The Senate Judiciary Committee has considered five different versions of the bill, and though the alterations have increased the bill’s chances of passing, each version has offered less protection for reporters than its predecessor.

The most recent version, the Free Flow of Information Act of 2006, was introduced on May 18, 2006, by Sen. Richard Lugar, R-Ind., and sponsored by Sens. Dodd, Arlen Specter, R-Pa., Lindsey Graham, R-S.C., and Charles Schumer, D-N.Y.

This analysis examines the 2006 bill. An accompanying chart compares its provisions with those of the previous versions.

Legal background
Branzburg v. Hayes (1972) was a landmark case for reporter’s privilege and has been the point of reference for subsequent cases and the proposed legislation. In a 5-4 decision, the justices ruled against the reporter's-privilege claim.

In his majority opinion, Justice Byron White identified two reasons that the Court did not create a structure for determining a privilege. First, he asserted that an unacceptable unpredictability would arise whenever a judge determined whether there was a privilege in each individual situation. Second, White argued that defining those who “qualified for the privilege” would soon become necessary. Creating a definition, he added, would be too difficult because, as stated in Lovell v. Griffin, 303 U.S. 444 (1938), “the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”

(Ironically, both of these concerns arose again during debate over the current reporter’s privilege legislation.)

White qualified his opinion by warning prosecutors and grand juries that harassment of journalists is unjustified and that subpoenas are subject to motions to quash.

In a dissenting opinion, Justice Potter Stewart, writing for Justice William Brennan and Justice Thurgood Marshall, claimed that the majority ruling invited government officials to undermine the independence of the press and transform it into “the investigative arm of the government.” Stewart additionally said the “societal interest in a full and free flow of information to the public” is what allows for the constitutional protection of confidential sources.

Stewart proposed a three-prong test that the government must pass before a grand jury could compel a reporter to reveal sources: (1) Show there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.

Justice Lewis Powell’s opinion, though it concurred with the majority's rejection of a privilege, also suggested a balancing test of sorts — leaving some legal observers unsure how to interpret his opinion and how far to follow its principles. After restating the “warning against harassment” portion of the majority opinion, Powell wrote comments that seemed more like a dissent than a concurrence. He called for a case-by-case evaluation when the majority opinion rejected it. He said the “claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens,” though the majority opinion spurned a balancing test. He wanted reporters to be able to quash a subpoena that requested “remote and tenuous” information when the majority only forbade “bad faith” inquiries. Thus Powell appeared to recognize a reporter’s privilege even though the majority rejected it.

Branzburg legacy: what a federal shield law could solve

1. Mixed interpretations in the federal circuit courts
The Branzburg decision left the federal court system without meaningful guidance on how to address the reporter’s-privilege question. Though nearly every federal circuit has weighed in on the issue, the interpretation of Branzburg has been “inconsistent and unpredictable.” Two studies, one by Leila Knox and one by Kara Larson, evaluated federal circuit court decisions and recommended that the issue be resolved. They found various interpretations of Branzburg and different applications of Justice Powell's balancing test, which is the weighing of the public interest in the free flow of information against the needs of the entity subpoenaing the information. The multiple interpretations have often left reporters unsure of their level of protection.

2. Less and less protection for reporters
In spring 2003, Anthony Fargo published a study evaluating the Society of Professional Journalists' report, “The Erosion of the Reporter’s Privilege.” In it, SPJ used pending cases as evidence of a “judicial hostility” toward reporter’s privilege. Analyzing the outcomes of the cited cases, Fargo found that most actually ended in the press’s favor and thus concluded that the erosion of the privilege was not as great as the SPJ had suggested. The conclusion of his study, however, might have been different if he had conducted it a year later.

In August 2003, Judge Richard Posner of the 7th Circuit wrote a decision that some claim ignited efforts to pass a federal shield law. While most circuits had used Justice Powell’s concurring Branzburg opinion to create some form of balancing test for reporter’s privilege, Posner’s decision in McKevitt v. Pallasch, 339 F.3d 530 (2003), cast serious doubt on the validity of those interpretations. In addressing the facts of the case, Posner said that “courts have been skating on thin ice” when they interpret non-confidential information as being protected by a reporter’s privilege. Nor was that the only comment that raised the concerns of scholars and journalists. Judge Posner added that some cases have ignored Branzburg by treating the majority opinion as “just a plurality opinion.” Others have “audaciously” stated that “Branzburg actually created a reporter’s privilege.” Such interpretations of privilege "can certainly be questioned,” Posner added.

Judge Posner's observations put other court decisions into question. Scholar Casey Murray found that Posner’s decision has been cited in more than 10 cases in less than three years. In In re Special Proceedings, 373 F.3d 37 (2004), the 1st Circuit stated, “One distinguished judge has questioned whether Branzburg now offers protection much beyond what ordinary relevance and reasonableness requirement would demand.” Although no studies have been conducted quantitatively analyzing whether reporters have less protection now than before Posner’s decision, the recent rulings in the Judith Miller, Wen Ho Lee, BALCO and Hatfill cases indicate judges are tending to follow Judge Posner’s interpretation.

3. A balancing test
Congress could look at state shield laws for guidance on the question of a balancing test governing reporter's privilege.

Knox and other researchers recognized that states essentially have three variations on the level of protection they offer reporters: (1) absolute privilege for sources and materials; (2) absolute privilege for sources and qualified privilege for materials; and (3) qualified privilege for both sources and materials.

Under an absolute privilege, reporters cannot be compelled to disclose their sources and/or information under any circumstances. Under a qualified privilege, a judge determines whether a reporter must testify by balancing press freedoms against a compelling government interest in obtaining the information. A 1997 study by Alexander and Cooper, which reviewed the texts of 29 state shield laws to evaluate their strength, noted, “The absolute privilege would better serve and further the goals of press freedom.” However, as Anthony Fargo stated in his 2006 study, in the post-9/11 world, qualifying the privilege to allow balancing for security issues is a “necessary evil.”

4. Defining who is protected
Every state that created a statutory privilege included a unique definition. None of these definitions were the same, however, according to Alexander and Cooper’s study. In Fargo’s conclusion, he suggested that a definition must be included in a federal shield law. Because of the debate regarding defining who is protected, this study will ask the experts their opinions on that issue and whether the legislation’s definition helps protect reporters.

Congress steps in: the progression to the current bill
Attempting to pass a federal shield law is not a new occurrence. According to First Amendment attorney Robert Lystad, 99 shield-law bills were introduced into Congress during the six years following Branzburg. He concluded that two issues precluded the bills’ passage: (1) a definition of a journalist could not be agreed upon; and (2) the press (at the time) demanded an absolute privilege. While both of these issues persist to some extent, the recent cases have prompted new attempts to establish a privilege.

Since 2004, five bills have been introduced in the Senate, two of which have identical “partner bills” in the House. This study, however, will focus only on the Senate bills (see comparison chart).

The first bill, S. 3020, was introduced in November 2004 by Sen. Chris Dodd, D-Conn. Because he introduced it so late in the session, he reintroduced an identical version in February 2005 as S. 369, the Free Speech Protection Act of 2005. These bills provided an absolute privilege for reporter’s protecting their sources.

After Dodd first introduced the 2004 version of the bill, Reps. Mike Pence, R-Ind., and Rick Boucher, D-Va., decided to create their own bill that approached the problem from a different angle. After having breakfast with Pence and Boucher, Indiana Republican Sen. Richard Lugar took an interest in their version. The next day, he introduced S. 340: the Free Flow of Information Act of 2005, which was identical to Pence and Boucher’s bill. This bill also provided for an absolute privilege for sources, but it weakened the privilege by broadening the range of situations in which a document or information could be subpoenaed.

After conducting hearings, receiving a strong negative response from the Department of Justice and getting suggestions from news-media coalitions, the sponsors made changes and reintroduced the bill on July 18, 2005, as S. 1419, still called the Free Flow of Information Act of 2005. This next version again weakened the privilege by calling for a qualified privilege for both sources and information. A hearing on this version of the bill was conducted on Oct. 19, 2005. However, with the Supreme Court confirmation hearings of Chief Justice John Roberts and Justice Samuel Alito, momentum slowed and the Senate Judiciary Committee did not vote on the bill before Congress recessed.

Sen. Arlen Specter, R-Pa., had made it clear he wanted to create a modified version after the drive to passage slowed. He did so, and on May 18, 2006, Lugar introduced the version that is the subject of this study, (S. 2831: the Free Flow of Information Act of 2006).

Though Lugar officially introduced the act, it is referred to as Specter’s version. This version is much longer and more detailed than any of its predecessors. Like the previous version, it calls for a qualified privilege for both confidential sources and other information, but this act contains different requirements to compel disclosure depending on who issues the subpoena (see the chart for the requirements for U.S. attorneys, criminal defendants and civil litigants).

This version also contains explicit exceptions. Reporters do not have a privilege against disclosure of a source or information when they (1) are eyewitnesses or participants in "criminal or tortious conduct,” (2) have information to “prevent death or substantial bodily injury,” or (3) disclose information that is of “national security interest” (see chart for more detailed wording). Additionally, this version completely changes who in the government is bound by these rules, and it also substantially changes the definition of a journalist.

What media experts said
The previous four bills had somewhat common goals; protect reporters who protect their sources. As evidenced by their evolution, however, it is clear that each subsequent bill offers a lower level of protection. An absolute privilege became qualified, and then a qualified privilege became qualified with additional exceptions.

At what point does the proposed legislation stop fulfilling its key purpose? Does the Free Flow of Information Act of 2006, as currently written, effectively protect reporters who protect their sources?

To answer this question, this study canvassed experts in news media and media law. The 10 individuals who completed the interview questions:

  • Paul Boyle, senior vice president for public policy, Newspaper Association of America
  • Lucy Dalglish, executive director, Reporter’s Committee for Freedom of the Press
  • Kevin Goldberg, counsel, American Society of Newspaper Editors
  • William “Bill” Ketter, editor and senior vice president of news, The Eagle-Tribune, North Andover, Mass.
  • Jane Kirtley, Silha professor of media ethics and law, School of Journalism and Mass Communication, University of Minnesota
  • Gabriel Schoenfeld, senior editor, Commentary magazine
  • Geoffrey Stone, Harry Kalven Jr. distinguished service professor of law, University of Chicago Law School
  • Charles Tobin, partner, Holland & Knight, LLP, and chair of the D.C. Bar Media Law Committee
  • Pete Weitzel, coordinator, Coalition of Journalists for Open Government
  • Kurt Wimmer, senior vice president, general counsel, Gannett Co. Inc.

    In addition to the 10 individuals, the Department of Justice’s opinion on the legislation was used. The DOJ’s view was collected from two sources: the June 20, 2006, letter from Assistant Attorney General William Moschella to Sen. Specter regarding the Free Flow of Information Act of 2006, and Federal News Service’s transcript of Deputy Attorney General Paul McNulty’s testimony to the Senate Judiciary Committee on Sept. 20, 2006, regarding the legislation. Thus for the purposes of this study 11 experts were consulted.

    Asked to evaluate the Free Flow of Information Act of 2006 on the following criteria, the experts reached the following conclusions:

    Criterion 1. The act gives more protection to journalists than they currently have. Fulfilled? Yes.

    Criterion 2. The act makes it clear who is covered by the law. Fulfilled? Yes.

    Criterion 3. The act creates a way to balance the public interest in information with harm. Fulfilled? No.

    Criterion 4. The act will help resolve the differences in court rulings among some circuits. Fulfilled? Yes.

    Criterion 5. The act will help resolve concerns resulting from the current difference between state and federal laws. Fulfilled? Yes.

    Thus, leading media experts said the Free Flow of Information Act of 2006 satisfied four of five criteria for success as a shield law protecting journalists seeking to protect their confidential sources.

    Alicia Armbruster, a First Amendment Center intern in fall 2006, is a political science and communications double-major at the University of Michigan and will attend law school at the University of Tennessee in fall 2007.

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    Branzburg v. Hayes, reporters’ privilege & circuit courts
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    State shield statutes & leading cases
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    Chart comparing shield-law bill versions

    Analysis/Commentary summary page
    View the latest analysis and commentary throughout the First Amendment Center Online.

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