When I. Lewis “Scooter” Libby dropped his appeal last month, the legal case against the former vice presidential aide officially closed. The legacy of Libby’s prosecution in the Valerie Plame leak case, however, remains open.
The legacy of the Libby case is wrapped up in government leaks, reporters’ sources, and press subpoenas. The case began with Bob Novak’s column, continued with New York Times reporter Judith Miller’s incarceration, and ended with reporters’ trial testimony.
This spectacle sparked a push for a federal law allowing reporters to shield their sources. With the support of conservatives like Rep. Mike Pence, R-Ind., and former Solicitor General Ted Olson, the House passed a bill creating a federal reporter’s privilege last fall. The legislation is stalled in the Senate, held up by opposition from the White House and some Republican senators who argue that a shield law could thwart criminal investigations, particularly investigations into alleged breaches of national security.
The opposition, though well-intentioned, runs counter to conservative values that would be served by such a law — respect for history, comity, and predictability in the law. Although national security is a paramount concern, it can be protected while also fulfilling these principles.
First, consider the history. The first criminal leak investigation began in 1734 when the New York Weekly Journal published anonymous criticisms of the Crown Governor. When the Journal’s publisher refused to identify the critics, he was arrested, jailed for eight months, and forced to stand trial on criminal charges. Ultimately, the publisher was acquitted, and, as Supreme Court Justice Clarence Thomas has noted, his acquittal “signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind” (McIntyre v. Ohio Elections Commission, 1995).
Those values quickly became the norm in American journalism as 18th century printers routinely fought to protect their writers’ anonymity. The Founding Fathers themselves viewed protecting anonymous speech as central to a free and vibrant press, criticizing efforts to unmask anonymous writers as a “restraint” on press “liberty.”
The modern shield-law movement was born in the 1890s, after a Baltimore Sun reporter was jailed for refusing to disclose his source for reports on secret grand jury proceedings. Maryland responded by enacting the country’s first shield law, which provided reporters an absolute privilege against disclosing their sources in any legal proceeding.
For nearly 40 years, Maryland’s law stood alone. However, between 1929 and 1935, several journalists around the country were fined and jailed for refusing to reveal sources for articles about everything from bootlegging to legislative procedure. Seven more states responded by passing shield laws, all of which protected confidential sources in criminal cases.
Then, in 1972, the Supreme Court issued its ruling in Branzburg v. Hayes, the only case in which it has considered whether reporters possess a privilege to protect their sources. Four justices said reporters have no privilege, and four justices said they do. One justice wrote his own opinion, suggesting there is a privilege, but requiring the reporters in the case to identify their sources anyway.
In the wake of Branzburg, dozens of states enacted statutory shield laws and adopted common-law reporter’s privileges. Today, 33 states and the District of Columbia have shield laws, and courts in another 16 states have recognized a reporter’s privilege, representing a near-unanimous view that protecting reporters’ sources serves the public interest, even when it makes some criminal investigations more difficult.
Federal circuit courts interpreted the fractured decision in Branzburg in various ways. For many years, the lack of uniformity made little difference: Between 1976 and 2000, there were only two decisions arising from government efforts to discover reporters’ sources in leak cases. In both, the subpoenas were quashed.
In recent years, however, federal courts’ approaches to confidential sources have diverged further, and an increasing number of federal courts have ordered reporters to reveal sources. The inconsistency at the federal level has fostered unpredictability at the state level, where litigants now subpoena reporters in all kinds of cases — from contract disputes to employment discrimination cases to adoption proceedings — whether the desired information is protected under settled state law or not. The situation has grown so dire that 34 state attorneys general filed a brief pleading with the Supreme Court to provide some guidance. The AGs stressed that the “increasing conflict” among the federal circuits “has undercut the State shield laws” and “undermines … vital State interests.”
A federal shield law would provide much-needed uniformity at the federal level, while promoting comity with the states. Yet conservative opposition to a federal shield law is not focused on history, comity or predictability. It centers on national security. Federal prosecutors, however, are not just subpoenaing reporters in cases where national security is actually — or even potentially — compromised. Instead, they have chosen to pursue reporters’ sources for stories on athletes’ steroid use and street protests.
Notwithstanding the government’s record to date, protecting national security is a grave concern. But, merely cloaking information in a veil labeled “national security” does not mean the information poses an actual threat, nor should it lead to the wholesale unmasking of reporters’ sources. As Judge J. Harvie Wilkinson III admonished in an Espionage Act case nearly 20 years ago, “The First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security’” (United States v. Morison, 4th Cir., 1988)
Just look at Libby’s case. A special prosecutor was appointed to investigate a supposed breach of “national security” and then used his subpoena power to pursue reporters’ sources. Yet the nation’s security was never at risk, and no national security crime was ever committed.
Following Judge Wilkinson’s admonition, the two leading bills in Congress attempt to strike the appropriate balance between protecting against real threats and protecting reporters’ sources. They require reporters to disclose their sources to prevent death, bodily harm, and acts of terrorism, and make plain that the privilege does not apply to foreign powers, foreign agents or terrorist organizations.
The bills also require reporters to reveal their sources when a leak of properly classified information has caused, or will cause, significant and articulable harm to national security and when disclosure will assist in preventing real harm to national security. This standard is consistent with the well-established precedent that a newspaper cannot be punished for publishing truthful information about a matter of public concern “absent a need ... of the highest order” (Bartnicki v. Vopper, 2001). Although enacting a shield law might mean that prosecutors could not force reporters to reveal their sources in every leak investigation, it covers situations where leaks actually pose a threat to the nation’s security. And that’s what really matters.
Conservatives have often noted that Libby should never have been the subject of a criminal investigation, for no underlying crime was ever committed. As Libby’s legal battle draws to a close, it also remains clear that the Plame leak never should have sparked subpoenas to the press. That is one of the certain legacies of Libby’s case, and it should live on in a federal shield law with conservative support.
Michael Berry is an attorney in the Philadelphia office of Levine Sullivan Koch & Schulz, L.L.P, where his practice focuses on representing media, news and entertainment clients in First Amendment matters.