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The New York Times building is seen on November 29, 2006 in New York City. (Stephen Chernin/Getty Images)

Time for a Shield Law?

Gabriel Schoenfeld

The American press is in crisis, or so say many of its practitioners. Indeed, to hear journalists tell it, reporting the news has never been more difficult, particularly in the national-security arena. The secrecy practices of the U.S. government, they say, have curtailed the flow of information to the public. The Bush administration put the restrictions in place in the wake of the September 11, 2001, terrorist attacks, and the Obama administration has followed suit, continuing many of the same policies and augmenting them with an unprecedented crackdown on leaks of classified information. Over the last five years, the Obama Justice Department has pursued eight leak prosecutions — nearly triple the number under all previous presidents combined — and it has taken extraordinary steps to uncover leakers, including using subpoena powers to rummage through the private and professional email correspondence and telephone records of journalists. Further, the administration has continued to pursue New York Times reporter James Risen, insisting that he testify as a witness in the prosecution of former CIA agent and alleged leaker Jeffrey Sterling. Risen has thus far stood firm, vowing to go to jail rather than name his confidential source in court.

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.

A shield law would prevent journalists from being legally compelled to reveal the identities of their confidential sources. Such a law, which would overturn a historic Supreme Court decision, has never gained sufficient traction to pass. In this Congress, however, the effort has been making unusual headway, with some Republicans joining Democrats in pushing it forward.

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.

A shield law would hinder but not stop the administration from investigating leaks, and it would protect journalists who come upon valuable information in the course of their work. It would recognize the important role that the fourth estate plays in American politics as it uncovers waste, scandal, and illegality and allows voters to see how their government functions. A government by the people works only when the people are well informed, and only an unfettered press can ensure that the people know what their government is really doing. It goes without saying, therefore, that reporters are invaluable to the health of a democracy such as ours, and a shield law would facilitate their important work.

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.

DRAWING LINES

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.

Decided by the Supreme Court in 1972, Branzburg v. Hayes brought together three cases involving reporters who were resisting subpoenas to testify before grand juries about crimes they may have witnessed in the course of their newsgathering. Paul Branzburg, a staff reporter for the Louisville, Kentucky, daily Courier-Journal, had reported in detail about the local illicit drug trade; two other reporters had written extensively on violence and threats of violence involving the Black Panthers. The crimes under investigation by the grand juries were serious, including not only the sale of illegal drugs but also mail fraud, swindling, and conspiracy to assassinate the president.

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.

UPHOLDING THE LAW

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,

is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection….[W]e cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.

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.”

In this respect, if Congress passes a shield law, it would be abetting a power grab by the “institutional” press that would place it above the legitimate needs of the community to fight crime. Even a sitting president of the United States does not enjoy such a power. Consider that during the Watergate scandal a subpoena was served on Richard Nixon, then the president of the United States, to produce the White House tapes. Nixon refused, citing executive privilege and pointing to the vitally important need for confidentiality of communications — the same need advocates of a shield law say is essential for the press to perform its mission. But in United States v. Nixon, Nixon did not prevail. Like every other American citizen, he was compelled to give testimony.

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 president, though, has an additional reason for maintaining confidentiality that the press lacks: As a constitutional officer, he is entrusted with enforcing the laws and securing the country against enemies. The executive branch over which he presides is part of the constitutional system of checks and balances, subject to the countervailing exertions of the legislative and judicial branches, each with unique obligations and rights. The problem with a reporter’s privilege is that it would begin to integrate the press into the government in a way that is foreign to the Constitution, making the press resemble a formal branch of government. As Lewis argued:

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.

Legally institutionalizing the press, Lewis suggested, could imperil the very independence that a shield law seeks to bolster. Granting the press special rights as an institution could undermine the government’s ability to perform its most essential duty of upholding the law and providing security. To the extent that such undermining either occurs or is perceived to occur, it would inexorably lead to calls for formal checks on the press of the kind that are anathema to the American tradition.

A CHORUS OF DOOMSAYERS

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.

During the presidency of the reputedly ultra-secretive George W. Bush, anonymous sources gave journalists information about the abuse of prisoners at Abu Ghraib, extraordinary renditions, warrantless wiretapping, clandestine CIA detention facilities abroad, secret monitoring of the movement of terrorist funds, and many other covert operations. The flow of sensitive classified information has only intensified under Obama, bringing us leaks by anonymous government officials about such ultra-sensitive matters as the introduction of the Stuxnet virus into Iran, the presence of a CIA mole in an al-Qaeda cell in Yemen, and the existence of CIA sources with access to the testing schedule of North Korean nuclear weapons. To top it all off, we have seen the massive disclosures by Bradley Manning and Edward Snowden. Despite the fear of prosecution, and without a federal shield law on the books, anonymous and not-so-anonymous informants have continued to provide journalists with the most sensitive of government secrets.

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.

The press’s liberty makes it a useful check on the government, but its liberty does not grant it a right to access governmental information — let alone sensitive classified information — unless specified by law. The Freedom of Information Act was enacted in 1966 to provide a legal mechanism for the public and press to gain such access, and in the aftermath of Branzburg, Congress created the Presidential Records Act to extend that access further. But outside of the law, the press does not enjoy some sort of extraordinary right to penetrate the inner workings of government. Justice Potter Stewart, a friend of the press and a dissenter in Branzburg, put the relationship succinctly in his famous 1974 address to Yale Law School: “The press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed. There is no constitutional right to have access to particular governmental information, or to require openness from the bureaucracy.” Complaints from reporters that government officials now fear disclosing national-security secrets are not just self-serving; they rest upon a conception of government that, whatever else one may think about it, is alien to the legal and constitutional order in which we live.

THE RESPONSIBLE PRESS?

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.”

By refusing to testify in the Sterling case as is required by law and as justice demands, Risen is adding a legal offense to the moral transgression he has already committed. Far from being an advertisement for the passage of a shield law, the Sterling case is a classic demonstration of why such a law is a bad idea. Risen obtained his story from his CIA source even without a shield law on the books. His promise of confidentiality was sufficient to induce his source to talk. There is scant public interest in bolstering that promise by giving it the force of law. Strengthening that promise would only make it easier for future Sterlings or Bradley Mannings and Edward Snowdens to pass along vital government secrets without being apprehended. The damage that they and other leakers have already wrought on our national security will be as long lasting as it has been severe. Offering leakers a legally unassailable promise of confidentiality with the enactment of a shield law would only widen sluice gates that are already open.

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