Preserving public accountability: quashed subpoenas and the journalist’s privilege
Despite widespread state adoption of media shield laws, there remains no statutory equivalent at the federal level.
Photo courtesy of The White House's Flickr photostream (Official White House Photo by Chuck Kennedy)
To date, forty-nine states and the District of Columbia have enacted media shield laws to provide journalists with a qualified privilege at the state level. With some variance from state to state, the general intent of these laws is to protect journalists from being forced to divulge sources, produce information or documents, or provide testimony in court.
Presently, however, there is no such protection afforded at the federal level. Recently, a series of controversies, including the National Security Agency’s (NSA) secret surveillance and collection of private phone records and the potentially illicit seizure of the Associated Press’ phone records by the Department of Justice (DOJ), has plagued the Obama Administration. In response to these scandals, there have been heightened efforts to establish a federal media shield statute.
“It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil and criminal statutes of general applicability.”
Scandals like those previously mentioned play out in the media in great detail once they are brought to the general public’s attention. In some cases however, these issues would never come to light be it not for watchdog journalists who provide a platform for whistleblowers. By their very nature, newsworthy events often involve criminal prosecutions or civil litigation, which in turn result in subpoenas—for journalists’ testimony, production of documents, or otherwise.
Many officials in Washington are calling for Edward Snowden, who claims responsibility for leaking information on the NSA’s programs, to face criminal prosecution; however, Glenn Greenwald is the journalist who first broke the news regarding the NSA’s alleged domestic surveillance. In this situation, a federal shield statute might protect Greenwald from subpoenas to disclose even more information obtained in his newsgathering activities.
Importantly, the general aim of shield laws is not to protect or immunize journalists from their own wrongdoing or negligence. Congressman Peter King has called for Greenwald’s arrest and prosecution amidst fears that the article places American agents abroad in the line of danger, but it is unclear which law, if any, Greenwald may have violated. Any punishment of Greenwald would undoubtedly raise profound First Amendment concerns related to freedom of speech and freedom of the press. Nevertheless, if Greenwald violated a law in the course of investigating the NSA story, he would not enjoy immunity for those acts based on the traditional concept of journalist’s privilege.
The journalist’s privilege is generally a qualified privilege, not a grant of absolute immunity. The Supreme Court of the United States in Branzburg v. Hayes acknowledged that journalists enjoy no special immunity in their news gathering activities: “It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” While the government shall not unconstitutionally impose upon the freedom of the press, neither may the press unlawfully gather or distribute information only to later assert First Amendment protection or protection under a shield statute.
Shield laws increase public accountability and transparency by protecting journalists.
In a recent hearing before the Senate subcommittee on appropriations, Attorney General Eric Holder vowed that under his oversight, the DOJ “will not prosecute any reporter for doing his or her job.” However, though never charged, Fox News reporter James Rosen was investigated as a co-conspirator in a 2010 Espionage case for his involvement in publishing a classified document.
In 2005, under the George W. Bush administration, journalist Judith Miller was held in contempt of court for 85 days for refusing to divulge the name of a source. And just last month, the DOJ seized phone records belonging to the Associated Press.
Shield laws increase public accountability and transparency by protecting journalists. Whistleblowers are more likely to come forward when anonymity is assured. Likewise, journalists who enjoy the protection of a shield statute are more willing and able to report stories involving a source who wishes to remain anonymous. Depriving journalists of this protection may create a “chilling effect” that would undermine free speech, freedom of the press, and therefore, public accountability.
A federal statute mirroring those already enacted in forty-nine states would avoid contempt of court situations like Judith Miller’s and would provide clarity and consistency for federal courts.
In North Carolina, “a journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist.” However, a party seeking to overcome this privilege can do so by establishing that the information is relevant to the case, is unavailable anywhere else, and is critical to the outcome of a claim or defense. The protections provided by N.C. Gen. Stat. § 8-53.11 apply only at the state level.
Although there is not yet a federal shield statute, courts in many federal circuits have already recognized a journalist’s privilege. For instance, a little over ten years ago the U.S. Court of Appeals for the Fourth Circuit in the case of Ashcraft v. Conoco recognized that “[n]ews reporters are entitled to some First Amendment protection of the confidentiality of their sources,” and that “such protection is necessary to ensure a free and vital press, without which an open and democratic society would be impossible to maintain.” However, the Court noted that this, too, is a qualified privilege and “will be overcome whenever society’s need for the confidential information in question outweighs the intrusion on the reporter’s First Amendment interests.”
Nevertheless, in the absence of a federal statute granting protection, circuits are split as to the existence of a journalist’s privilege. A federal statute mirroring those already enacted in forty-nine states would avoid contempt of court situations like Judith Miller’s and would provide clarity and consistency for federal courts employing a judicially-created First Amendment privilege.
Regardless of whether the Free Flow of Information Act becomes law, it is important that lawmakers move forward with the guiding principles of the First Amendment in mind.
The DOJ has implemented voluntary guidelines (pdf) regarding the issuance of subpoenas to members of the news media, which serve as little more than recommendations for the Department. The policy statement calls on the DOJ to consider “the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.” Ultimately, there is a great deal of discretion involved, as the policy merely requires the Department to make “all reasonable attempts…to obtain information from alternative sources before considering issuing a subpoena to a member of the news media.”
Within the last month, the Obama Administration requested that a 2009 bill, the Free Flow of Information Act (pdf), be reintroduced. Much like state-level media shield laws, including the North Carolina equivalent, the Act would grant reporters a qualified privilege. Pursuant to the proposed legislation, reporters could quash subpoenas to appear or to produce information unless the party seeking the information overcomes the statutory burden. Moreover, it would allow journalists an opportunity to be heard in Court before submitting to forced compliance with the subpoena.
Almost every State in the Union has already taken the necessary steps to provide journalists with a qualified privilege. The absence of a federal shield statute jeopardizes free speech and public accountability. Regardless of whether the Free Flow of Information Act ultimately becomes law, it is important that lawmakers move forward with the guiding principles of the First Amendment in mind. In many respects, journalists are the eyes and ears for citizens who otherwise would go uninformed. To impede journalists’ ability to report the news blocks the “free flow of information” and may well create a chilling effect that is repugnant to the First Amendment.
