Time for a Shield Law?

Gabriel Schoenfeld

Spring 2014


Not surprisingly, news outlets are protesting what they perceive to be hyper-secretive and illiberal government activity. A 2013 Washington Post editorial complained that when "journalists are threatened with or sent to jail because they refuse to give up their sources, people think twice about talking, and reporters are deterred from pursuing their mission." The government's actions make it harder for the press to report on what the government is doing, the Post and its allies say, and pose a threat to the freedom of the press guaranteed by the First Amendment. The Obama administration's aggressive attempts to stop and prosecute leaks have prompted free-press advocates to renew their calls for Congress to pass a shield law.


The Free Flow of Information Act was approved by the Senate Judiciary Committee last September and is likely to come to the Senate floor for debate at some point this year. The bill enjoys the backing of President Obama, who opposed similar legislation in his first term. News organizations and a host of civil-liberties and transparency advocacy groups have mobilized behind it, believing that, in the words of one proponent, "[f]or the first time since the post-Watergate era, the stars are aligned" for a shield law to pass.


The idea of a shield law is also fraught with serious problems, however, which its champions too often underplay or ignore. The implementation of such a law would be highly problematic, as it could artificially circumscribe the classification of "journalists" in America and thereby curtail freedom of expression by leaving some people out. Further, the rationale for the law is questionable, and its passage could have the untoward and counterintuitive effect of leading to increased restrictions on the press. But the biggest problem with a shield law is that, at a juncture when the United States remains under threat, it would undermine the government's ability to enforce the law and provide for the common defense, upsetting the delicate balance between freedom and security that we now struggle to maintain.


Many of the questions surrounding the idea of a shield law today have been under discussion for decades. More than 40 years ago, the Supreme Court adjudicated a case that hinged on several journalists' claim to a reporter's privilege under the First Amendment, and the Court's reasoning provides a useful starting point for understanding the potential implications of the law now being considered.


The reporters argued that if they were compelled to reveal their confidential sources to a grand jury, those sources — and, more importantly, other future confidential sources — would be deterred from providing newsworthy information, thereby stanching the free flow of information safeguarded by the First Amendment. Some prominent legal thinkers agreed. Constitutional-law scholar Alexander Bickel submitted an amicus brief (as the primary drafter) arguing that "off-the-record information obtained in confidence is of the utmost importance to the performance of the reporter's function." News reporting in the United States, Bickel argued, "would be devastatingly impoverished if the countless off-the-record and background contacts maintained by reporters with news sources were cut off." If news sources "cannot talk freely, and partly in off-the-record confidence, they will not talk at all, or speak only in handouts and releases."

In a 5-4 decision, the Court ruled against the reporters. Justice Byron White, writing for the majority, explained why he and his colleagues declined "to grant newsmen a testimonial privilege that other citizens do not enjoy." To start, there was the nettlesome matter of determining who should be eligible for coverage under such a shield, a task which White saw as presenting "practical and conceptual difficulties of a high order." Among other things, journalists designated as eligible for the testimonial exemption would enjoy significant competitive advantages over those who were not. Sources concerned about retaining their anonymity — such as government officials leaking classified information — would be far more likely to talk to privileged journalists than to others. Those without the privilege would face a major professional disadvantage.

Supporters of shield legislation are keenly aware of the difficulties entailed in legally defining who is a member of the press. In the bill currently before Congress, they attempt to surmount the inconvenience, as they have in draft bills in previous years, by putting forward a broad list of covered journalists. Thus, those who are covered this time around include both employees of "old media" organizations, such as newspapers, magazines, and television networks, and also those who work for "new media" forms, like "mobile applications" and "multichannel video programming distributors."

Such novel categories suggest that changing technology, which is bringing into being new forms of journalism almost by the day, holds the potential to make Congress's compendium of "covered journalists" obsolete even before it becomes law. In spite of the bill's attempts to be inclusive, however, it altogether excludes a great many other kinds of conveyors of information and opinion, some of them explicitly mentioned by White in Branzburg. These include "lecturers, political pollsters, novelists, academic researchers, and dramatists," not to mention the innumerable unpaid web-based citizen journalists who, through blogs and social media, are now transforming how America receives its news.

At the same time, the idea of defining exactly who is a protected journalist (and who is not) is in tension with the longstanding American tradition of defining the press in a maximally encompassing way. Liberty of the press, as White put it, "is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods." Our Constitution thus affords no extra protections for some special professional class called the "press." It is true, of course, that the First Amendment refers to both freedom of the press and freedom of speech, suggesting that the two are distinct and that the press, as an institution explicitly mentioned in the Constitution, could be thought to enjoy some special rights. But this is a misconception. The two appear adjacent to one another not because the framers wanted to give additional protection to the members of one particular profession. Rather, as suggested by the late Anthony Lewis, the New York Times opinion columnist and renowned student of the First Amendment, the two phrases actually guard the same right. Though information about the founders' intentions is sparse, Lewis argued that the "most natural explanation [for the presence of two clauses] seems the most probable: The framers wanted to protect expression whether in unprinted or printed form."

The "press" in the era of the founding was not conceived narrowly as one particular expressive form (e.g., newspapers) or one particular class of individuals (e.g., journalists). Lewis echoed White in explaining that "[t]hose who called for 'freedom of the press' in the seventeenth and eighteenth centuries had in mind books and pamphlets and all kinds of occasional literature as much as newspapers." In drafting the First Amendment, as best we can tell from the historical record, the framers of the Constitution wanted to secure liberty of expression broadly in both oral and written form. As Lewis wrote, there "is no evidence that they meant to limit the freedom of 'the press' to newspapers, excluding books and other publications, or that they intended to afford newspapers a higher standard of protection than other forms of expression."

By its very nature, a shield law, no matter how carefully crafted, would undercut the time-honored doctrine according to which everyone can express opinions or convey information to the public. Such a law would instead necessarily rest on a contrary doctrine — what Lewis memorably called "press exceptionalism" — that would establish a privileged class of officially recognized journalists. In other words, at the very moment when modern technology has enabled citizen journalism to come into its own, giving the "lonely pamphleteer" the ability to reach millions of readers simply through his own efforts on the internet, Congress is moving to give an elevated status to those whom it designates as "covered journalists" while diminishing the rights — and the competitive position — of everyone else.

To reduce the impact of this shortcoming, the current Senate bill would give judges the power to determine, in the case of any particular proposed witness, whether the protections afforded by the shield law should be offered "in the interest of justice" or if they are "necessary to protect lawful and legitimate news-gathering activities." But this remarkable grant of discretion rests on standards that are both question-begging (what is the "interest of justice"?) and undefined (what are "legitimate" news-gathering activities?). Beyond ensuring endless litigation, this kind of caveat drags the courts into the unresolvable (if not un-American) business of determining who is a bona fide member of the press.


The line-drawing issue, however problematic, pertains to the law's structure and implementation. In Branzburg, White addressed an even more fundamental problem with a reporter's exemption: that it places the professional needs of reporters above the need of the community to stop crime.

White considered two kinds of confidential informants that a newsman's privilege would safeguard: those engaged in actual criminal conduct and those with knowledge of actual criminal conduct. The preference for anonymity of those in the former group, wrote White,


As for those informants who were not themselves criminally culpable, White conceded that some might choose to stay silent if they know a reporter could be required to testify. But at the same time, scant evidence demonstrated that such silence had ever been the typical pattern. There was nothing in the constitutional rules that had ever posed a "serious obstacle to either the development or retention of confidential news sources by the press"; indeed, "[e]stimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative." Sources themselves could hardly be queried about this, while "surveys of reporters on this topic are chiefly opinions of predicted informant behavior and must be viewed in the light of the professional self-interest of the interviewees," that is, the reporters who want to minimize the difficulties of reporting. Indeed, White noted that, from the founding to the present day, in spite of never having had a recognized reporter's privilege, "the press has flourished."


Speaking for a unanimous Court (with Justice William Rehnquist recusing himself), Chief Justice Warren Burger ruled that "neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process." Concluding that the "legitimate needs of the judicial process may outweigh Presidential privilege," the Court explained its judgment with words that apply equally to the journalist's shield law: "The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense."

The Court reached this conclusion in the face of arguments put forward by Nixon's attorneys that an adverse ruling would "alter the nature of the American Presidency profoundly and irreparably" — an argument that echoes that of contemporary shield-law proponents. The president, like the press, does have a legitimate need to keep some communications secret, but the privilege stemming from this need is not absolute, as the Nixon case shows. The needs of the community to uphold the law, regardless of who is involved in the particular case, trump the professional needs of the press, and at times even the privileges of the presidency.


The whole idea of treating the press as an "institution" arouses uneasy feelings. In the American system, institutions are usually subject to external check. The press has operated as a freebooter, outside the system. The more formally it is treated as a fourth branch of government, the more pressing will be demands that it be made formally accountable. Moreover...the institutional view of the first amendment envisages a corporate organization of society, with groups assigned different roles and corresponding legal rights. The traditional American vision has been universal, positing a society of individuals with equal rights and responsibilities.



The position of the press has clearly changed in the decades since Branzburg. Back in 1972, White could say that the press had "flourished" despite the absence of a reporter's privilege, but that was long before the emergence of the full-blown post-9/11 hyper-secretive security state and President Obama's legal pursuit of journalists. In 2013, the Committee to Protect Journalists, an organization that defends newsgatherers around the world, was moved by the Obama crackdown to produce its first ever study of press freedom in the United States. It found the United States in a kind of crisis created by an administration that is "often unresponsive or hostile to press inquiries" and has instilled a "climate of fear" among potential sources. Leonard Downie, the study's author and a former executive editor of the Washington Post, regarded Obama's efforts to control leaks and information as the "most aggressive" since the Nixon administration. Given the crackdown, does White's reasoning still hold today? Might the new environment for journalists now justify a shield law that would have been unnecessary before?

A shield law has never been on the federal law books, yet it is preposterous to call American journalism today "devastatingly impoverished," as Bickel predicted in 1972 it would become without a newsman's privilege. Indeed, it was not impoverished then, and it is not impoverished today. If anything, an overview of the most prominent news stories of the past decade indicates that this has been a golden age of leaking and, therefore, of reporting.


One possible factor behind this hemorrhaging of secrets is that, notwithstanding the allegedly prevailing "climate of fear," the United States has not been especially aggressive in subpoenaing journalists. Before Branzburg, the Justice Department under President Nixon voluntarily introduced a set of highly restrictive guidelines limiting when it would issue such subpoenas. In those relatively rare instances when the Department of Justice considers taking such a step, the guidelines require that prosecutors weigh the benefits to law enforcement against the public's interest in the dissemination of information. To this end, before such a subpoena can be issued, all other avenues of investigation must have been foreclosed; the information sought has to be "essential" to a successful investigation; and, finally, the attorney general himself has to sign off on the subpoena. To appease its critics in the press, the Obama administration has tightened these guidelines even further. In short, subpoenaing a journalist is not something the U.S. government does lightly or often.

What then should we make of the press's complaints? Flourishing or not, the press has a longstanding habit of painting itself as a species endangered by repressive government policies. The alarmed language of Downie's report is not something new. In the late 1970s, New York Times reporter Myron Farber was jailed on contempt charges for refusing to turn over his notes to a New Jersey court in the murder trial of Dr. Mario Jascalevich. This event stoked the darkest fears of the fourth estate: "[C]rippling to investigative journalism," "disastrous to journalism in general," and a "horrendous precedent," intoned the Washington Post in an editorial typical of the prevailing sentiment in the press at the time. A similar outburst came in the mid-2000s during the Valerie Plame affair, when New York Times reporter Judith Miller was jailed for protecting her source's anonymity. During that scandal — and while another push for a shield law was under way — Floyd Abrams, the celebrated First Amendment lawyer (and outside counsel for the Times), declared that the work of reporting has "never been as seriously threatened as it is today." Norman Pearlstine of Time Inc. warned that the situation "chills essential news gathering and reporting." Times columnist Nicholas Kristof, for his part, reported that "we're seeing a broad assault on freedom of the press that would appall us if it were happening in Kazakhstan."

Today, we are once again hearing the same hyperbolic refrain. Beyond its utility in building political support for the passage of a shield law, the doomsayers' message is part of the self-congratulatory narrative of journalism, in which reporters portray themselves as heroic figures perpetually battling the authoritarian impulses of powerful government officials. But such mythmaking obscures the other side of the argument: While openness is essential to a democratic society, that same democratic society has a right to safeguard information it deems vital to its self-preservation. The need for freedom of the press must be balanced with the government's responsibility to fight crime and provide security.



Despite the complaints, some in the press understand the tension between news reporting and national security, and they will occasionally stop a story from running because of security concerns. "We listen respectfully to such claims [of government's security concerns], and then we make our own decision," said Bill Keller, former executive editor of the New York Times. "If we are not convinced, we publish, sometimes over the fierce objections of the government. If we are convinced, we wait, or withhold details." This is how things work at the Times and at other leading news outlets. Acting as a good citizen, the Times has on occasion delayed stories or even killed them outright to avoid jeopardizing national security. But in a world in which bloggers compete successfully with mainstream media outlets, the Times is no longer representative of the journalistic spectrum. In any event, even mainstream media outlets like the Times do not always act as good citizens. The case of James Risen — the face of the present push for a shield law — illustrates both good and bad journalistic citizenship.

In 2010 former CIA officer Jeffrey Sterling was indicted under the Espionage Act for leaking secrets. According to the government's charge sheet, in the early part of the last decade he began talking to Risen about a number of top-secret subjects, including some pertaining to CIA operations directed against Iran. In early April 2003, Risen told the CIA that he intended to publish a story in the Times about CIA operations aimed at thwarting Iran's nuclear weapons program.

Risen's warning alarmed George Tenet, then CIA director, and Condoleezza Rice, then head of the National Security Council. They saw the story as a threat to the United States' efforts to prevent Iran from acquiring a nuclear weapon. Tenet and Rice invited Risen and Jill Abramson, the Times's Washington bureau chief, to a meeting where they detailed the harm that Risen's proposed story would inflict on the country and the "imminent danger" in which it would place at least one CIA source. Editors at the Times listened to the government's warning and decided to kill Risen's story. In short, the Times acted responsibly and did the right thing.

The Times may have declined to print the story, but Risen opted to move ahead on his own, and he published the material given to him by Sterling in his 2006 book, State of War. It is impossible for outsiders to assess the damage caused by the revelations contained in that volume, but the fact that the Times declined to run the story, despite frequently publishing highly sensitive information in the teeth of government warnings, is powerful evidence that the consequences were likely significant. Yet not long after Risen's disclosure, and taking no cognizance of the fact that their employee had published information damaging to the country, the New York Times bestowed on him its "Publisher's Award," and he received a personal letter from the paper's owner and publisher, Arthur Sulzberger, Jr., saying, "Your investigative reporting has been an extraordinary asset to the paper since the day you joined us."




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