Letter From The President Of The New York County Lawyers' Association

2009-03-31 01:00

To The Readers Of The Metropolitan Corporate Counsel:

Is the Time Right for a Federal Reporters' Shield Law?

What do these four people have in common: Vanessa Leggett, Judith Miller, Jim Taricani, and Josh Wolf? They are the poster children for the Free Flow of Information Act: reporters who were imprisoned for an aggregate of 19 months because there is no uniform Federal shield law to protect reporters' sources.

In February, the Free Flow of Information Act was introduced in both houses of Congress with bipartisan support. The bill is substantially the same as one that passed the House of Representatives by an overwhelming 398-21 vote in 2008.

Although President Bush had threatened to veto it if passed by the Senate, President Obama and Attorney General Holder have both expressed support for the bill. Thus, it appears that it has a chance for passage as that rarest of all things in Washington: a bill with truly bipartisan support.

The rationale for a Federal reporters' shield law was articulated by Theodore Olson, Solicitor General in the Bush administration, at a hearing on the bill in 2006 (after he had left office):

[This issue has] important implications not just for reporters and the press, but is particularly critical to the ability of citizens to monitor the activities of, and to exercise a democratic check on, their government. One of the most vital functions of our free and independent press is to function as a watchdog on behalf of the people . . . . Journalists in pursuit of such stories . . . cannot function effectively without offering some measure of confidentiality to their sources.

The New York County Lawyers' Association recently held a forum to discuss the lack of a Federal reporters' shield law. Forty-nine states and the District of Columbia offer various levels of protection to journalists and their sources through statutes and decisional law. There is no uniform rule applicable to Federal proceedings, although there is a patchwork of rulings in various Federal jurisdictions.

The Free Flow of Information Act does not grant an unqualified privilege to reporters. Instead, it contains threshold tests establishing that there is no other reasonably available source for the information, and that the information is central to the proceeding in question. Then it calls for a court to balance the public interest in compelling disclosure of the information held by the reporter against the public interest in gathering news and maintaining the free flow of information. It contains exceptions relating to national security, terrorism and preventing imminent serious crimes, such as murder or kidnapping.

Only in the last year has there been a serious effort to evaluate the scope and frequency of subpoenas addressed to the mainstream media. RonNell Andersen Jones, "Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media," Minnesota Law Review, Vol, 93, p. 585 (2008). The study concluded:

Subpoenas to the media are happening with some regularity, they are not limited to the media organizations or the substantive issues that have been involved in the highest-profile recent cases, and, at least in some categories, they appear to be on the increase. . . . [E]ven a shield law with a strong national-security exception would be germane and useful to journalists in newsrooms that are widely varied in geography and organizational size.

If the Free Flow of Information Act had been in force, how would it have affected the four "poster children" cited above? Judith Miller and Jim Taricani - both of whom were subpoenaed to uncover the source of leaks - would probably have gone free. Vanessa Leggett might still have been ordered to disclose her interview with a murder suspect who committed suicide, and Josh Wolf might have been compelled to produce his video recordings of G-8 protests, which might fall under an exception in the bill for criminal activity witnessed by the reporter.

The range of results demonstrates that the Free Flow of Information Act can hardly be viewed as a straitjacket for prosecutors, or a source of unreasonable immunity for reporters. Its enactment would be a first bipartisan step toward the return to the rule of law. It would provide much-needed uniformity in Federal proceedings, and it would acknowledge the importance of an investigative press to preserving constitutional checks and balances.

Sincerely,

Ann B. Lesk