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A Shield Law For Reporters

By TChris, Section Valerie Plame Leak Case
Posted on Wed Feb 16, 2005 at 05:23:07 PM EST
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by TChris

The law is all about competing policies, and the competition is fierce when the need for a free and unfettered press clashes with the desire to solve (or defend against) a crime. Journalists frequently have information that would benefit either the government or the defense in a criminal case. When they assert a privilege to avoid becoming a witness, they may circumvent a defendant's Sixth Amendment right to compel testimony, just as they may defeat the government's ability to haul witnesses before grand juries. Striking a balance between a journalist's need to protect sources (to assure that other sources will divulge hidden truths without fear of reprisal) and the legal system's need for witnesses is a difficult task.

Yesterday, TalkLeft pondered the unanswered questions in the ruling that denied New York Times reporter Judith Miller and Time Reporter Matthew Cooper the privilege to conceal the identities of the persons who talked to them about Valerie Plame's employment as a CIA operative. Today, some who think the court got it wrong are calling upon Congress to legislate a shield against the compelled testimony of reporters. Many states have laws that recognize at least some protection for a journalist's privilege not to burn a source.

"The decision in this case underscores that these are perilous times for journalists and the public's right to know," said Lucy Dalglish, the Reporters Committee executive director. "There are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants. The ability of the media to act as independent sources of information for the public is in jeopardy."

Any such law needs to strike a balance between competing interests. It isn't clear that Congress is up to the task, or that President Bush would allow a shield law to take effect.

[E]ven the strongest supporters realize that the chances of getting a bill passed this year and signed by President Bush, who has shown little support for press access and rights, is slim.

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    A Shield Law For Reporters | 9 comments (9 topical)
    Re: A Shield Law For Reporters (none / 0) (#1)
    by Talkleft Visitor on Wed Feb 16, 2005 at 07:11:54 PM EST
    While I am concerned with maintaining the right of journalists to protect their sources, I am fed up with Judith Miller's (and the NY Time's) latest play of victimhood. From the final two paragraphs of Jailing of Reporters in C.I.A. Leak Case Is Upheld by Judges in today's NY Times:
    Aspects of the case remain secret. Mr. Fitzgerald submitted secret evidence to the appeals court that neither the reporters nor their lawyers were allowed to see. And the public version of Judge Tatel's concurrence includes eight blank pages along with the notation that they have been redacted. That is scary, Ms. Miller said. "I risk going to jail," she said, "for a story I didn't write, for reasons a court won't explain."
    They report it as if secret evidence is being introduced against Miller that she is powerless to defend against, and for a crime she didn't commit. This is not only offensive in that it tries to play on the very real problems many individuals are facing when accused of vague offenses, in vague proceedings, by an undisclosed athority. It is also disingenuous because she, her lawyers, and the NY Times all know that she risks jail not "for a story [she] didn't write," but for refusing to give testimony before a grand jury. The Special Prosecutor provided secret grand jury evidence to demonstrate the pressing need for the reporters testimony, but why should they have any access to that evidence, any more than any other witness called before the grand jury? The court does not need to explain this to her.

    Re: A Shield Law For Reporters (none / 0) (#2)
    by Talkleft Visitor on Wed Feb 16, 2005 at 07:53:38 PM EST
    Anonymous: Doesn't that just point out the unfairness of grand jury proceedings? That one side presents evidence the target does not get to see and or challenge by cross-examination? Like the old saying goes, a grand jury would indict a ham sandwich.

    Re: A Shield Law For Reporters (none / 0) (#3)
    by Talkleft Visitor on Wed Feb 16, 2005 at 09:27:17 PM EST
    Journalistic integrity is as much an oxymoron as can exist. I believe the press wants to protect their sources but at what cost does that come? I’m sure that, even as a moderate who leans heavily to the left, I will be in the minority in this thread but I see little actual social benefit to laws that protect the press from being compelled to reveal their sources under certain circumstances, primarily but not exclusively criminal cases. To elaborate: to allow a guilty man to go free or an innocent man to go to jail (the latter, of course being far worse) just to protect the journalist from losing possible sources in future stories is, without exaggeration, a complete travesty. I also have little faith that in this day and age the journalist wants to protect the integrity of the press. It is far more likely that they are attempting to protect the bottom line. The New York Times, Time Magazine, CNN, Fox News and of course the big three networks along with a host of other outlets who enjoy the freedoms of the constitution are multi-million and sometimes billion dollar companies. Not that freedom of the press is not a fundamental right that should be exercised, but to think that the press should somehow be exempt form proving the validity of their story up to and including revealing sources if needed to prevent a greater social loss, like that of individual freedom, is clearly giving these for profit companies little incentive to report accurately and truthfully but rather to report what will sell. If the source can exonerate an innocent man or ensure a guilty man is convicted, how can we first offer protection to the corporation whose function it is to make money by reporting the news, while ignoring the ability of a defendant to have a fair defense or a victim to see a perpetrator go free?

    Re: A Shield Law For Reporters (none / 0) (#4)
    by Talkleft Visitor on Wed Feb 16, 2005 at 09:37:37 PM EST
    talkleft: But that's not my point at all. With regard to Miller and the NY Times, I don't think anyone (Mr. Fitzgerald being the only one who counts) is indicating that they are targets of the grand jury proceedings. It seems to me both J.M. and the NY Times are mis-representing themselves as victims of a "secret prosecution" in this piece. If you want to argue that journalists have an unasailable 1st amendment right to protect their sources then O.K., lets discuss that. (And J.M. can say "That is scary, I, as a journalist, risk going to jail for protecting my source who outed Plame") If you want to argue that grand juries should not be able to see evidence that the target of the grand jury investigation can not see then O.K., lets discuss that. (And J.M. can say "That is scary, my source risks going to jail for outing Plame and he/she has not been able to see the evidence against him/her.") But where does J.M., her lawyers, and the NY Times get off posing like they have a right too all evidence that the grand jury has. If I was called befor e the grand jury to give evidence in this case (not the subject of the investigation, just called to give evidence), would you expect me to have the right to demand to see all evidence provided to the grand jury? The only grand jury evidence this court of appeals was given was what Fitzgerald felt was necessary to demonstrate the vital need for the testimony of these reporters. It was not evidence against J.M or NY Times. Why are they representing it as such? When J.M. says she is going to jail "for reasons a court won't explain", give me a break. I'm sure the court explained clearly that she was going to jail for refusing to give testimony before a grand jury. But the Times piece makes it sound like the reason she is going to jail is mysteriously hidden in the "eight blank pages" redacted from the concurrence. If you want to argue the constitutional question, I'm happy to learn from the master. I am just fed up with the posing.

    Re: A Shield Law For Reporters (none / 0) (#5)
    by Talkleft Visitor on Wed Feb 16, 2005 at 09:58:20 PM EST
    Billy: I sympathise with what you are saying, but I think that attacking reporters 1st Amendment rights will only weaken the 1st Amendment for all of us. Also, encouraging leakers is the only unmanaged and reliable avenue of transparency remaining with our increasingly closed and remote government. What pisses me is that "leakers" are more and more often top people seeking to influence or punish without political blowback, instead of underlings seeking to expose without punishment. Then reporters protecting sources are basically serving political ends, not transparency ends. Solution???

    Re: A Shield Law For Reporters (none / 0) (#7)
    by Talkleft Visitor on Wed Feb 16, 2005 at 10:23:19 PM EST
    First poster: Yes, we were on different topics. I was referring to targets and you are correct, Miller is not a target. However, the Code of Federal Regulations (Section 28 C.F.R. 50.10 )provides that supboenas to the media shall not issue unless certain conditions are met.
    (f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply: (1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation-- particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
    How can a journalist challenge the government's assertion that these conditions are met if they can't see the documents they are relying upon to establish them? I know, the court can make a determination "in camera" but still, it's another secret proceeding. Democracies die behind closed doors.

    Re: A Shield Law For Reporters (none / 0) (#6)
    by Talkleft Visitor on Wed Feb 16, 2005 at 10:25:17 PM EST
    off topic comment with reprinted text deleted.

    Re: A Shield Law For Reporters (none / 0) (#8)
    by Talkleft Visitor on Wed Feb 16, 2005 at 11:36:59 PM EST
    I'm categorically opposed to any such shield law; there is no such thing as "the media" deserving special protection. Anyone who communicates to the public -- whether through a blog, a blog comment, or otherwise -- is just as deserving. And professional journalists are at least compensated.

    Re: A Shield Law For Reporters (none / 0) (#9)
    by Talkleft Visitor on Thu Feb 17, 2005 at 09:08:58 AM EST
    talkleft: First, I would like to thank you for giving me a tutorial in this stuff. So my next question has to do with procedures. You quote the Code of Federal Regulations (Section 28 C.F.R. 50.10 ) regarding requirements for issuing a subpoena to a member of the news media. Is this a requirement the prosecutor is expected to demonstrate in an adversarial climate? Or is it a procedural issue simply requiring the approval of a judge? I can imagine a world in which every person/entity served with a subpoena gets their day in court in which the prosecutor must prove that she is investigating a real crime, and that the testimony of this person is necessary. And each person served is allowed to see and contest all of the evidence that the prosecutor uses in her proof. Talk about grinding the wheels of justice to a rust gathering halt! Of course we are talking only about the press here, but it still seems a bit much. Review the judges procedures in the SCOUTS. Make sure he is using the standard set out in Sec. 28 correctly. But allow Miller to contest the evidence? I don't know. I do believe the bar should be set higher for prosecutors to subpoena members of the press. And in fact it is higher; Fitzgerald has had to work much harder to compel testemony from J. Miller than to compel testemony from K. Rove. And it would be nice for the SCOTUS to rule on this and set the bar very high. But I don't think it should be impossible, and would be unhappy if the SCOUTS or Congress made it impossible. As it is now, the Administration is allowed to control the flow of information to the American public while hiding behind the press with their outrageous use of "on background" interviews. Just imagine when the default position is to classify everything, then safely "leak" only the things you want people to know. There will be no need for the Administration to have any (official) dialog with the American People.

    A Shield Law For Reporters | 9 comments (9 topical)