A Federal Journalist Shield Law

newspaper1b.jpgA bill in the U.S. House of Representatives, the Free Flow of Information Act, endeavors to create a federal privilege for journalists — a shield from being forced to identify anonymous sources. According to a Washington Post editorial in support of the bill:

Unfortunately, recent history has shown that some federal prosecutors and civil litigants do not value this flow of information as much as those of us in the media and the public do. In recent years, more than 40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases. While 49 states and the District of Columbia have shield laws or court decisions that protect the relationship between reporters and their sources, there is no statutory protection at the federal level.

A House bill sponsored by Rep. Rick Boucher (D-Va.) and Rep. Mike Pence (R-Ind.) would change that. The legislation would not offer an absolute privilege of non-disclosure to journalists. We don’t advocate such a shield — nor does The Washington Post Co., which has joined other media companies to lobby Congress on behalf of the bill, due to be voted on today by the House Judiciary Committee.

Instead, H.R. 2102 would compel the disclosure of a confidential source’s identity in federal court under three discrete circumstances: “to prevent an act of terrorism against the United States or other significant specified harm to national security”; “to prevent imminent death or significant bodily harm”; and to identify a person who may have unlawfully revealed a business trade secret or disclosed private health information or “nonpublic personal information,” such as financial information.

Overall, a federal court must determine “that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.” This strikes us as a reasonable balance.

My views on the bill are mixed. It makes some reasonable exceptions, including allowing the identification of sources who reveal private information about people. It would also not be restricted only to the mainstream media — it would also protect bloggers and others who engage in journalism. But it does have some flaws which I will discuss later.

My friend and law school classmate, Charley Kimmett, who is representing Steven Hatfill, pointed me to this post by Mark Grannis (a partner at his firm), critiquing the Free Flow of Information Act:

Advocates for the media say the legislation is necessary to protect whistleblowers, like “Deep Throat” of Watergate fame. But the subpoenas that have prompted media hand-wringing don’t have anything to do with whistleblowers. On the contrary, the cases in which reporters are subpoenaed tend to be cases in which the reporters allow themselves to be used by government officials who disclose sensitive information about private citizens. Some such disclosures are literally criminal, and they can ruin innocent lives.

We know the names of the victims, falsely accused of atrocious crimes by officials who could call press conferences if they were willing to be accountable for their statements. But because the leakers are government officials, the government shows little interest in exposing them. To get any redress, the victim must act as his own prosecutor, and he needs testimony from the reporters who so willingly published the leaks they received. Unless those reporters are required to testify (just like other citizens who witness other crimes), there will rarely be any justice for the victims.

These are thoughtful and valid points. Leaks by government officials are often self-serving, damaging to individuals, and not in the public interest. This was the case, in my opinion, with the Valerie Plame leak.

Grannis goes on to argue:

The press claims the special treatment provided by this legislation will promote more government accountability. But if accountability is the goal, why not start by publishing the names of officials who violate the Privacy Act by disclosing sensitive information from government files? Unfortunately, a reporter’s professional incentives to conceal his sources often outweigh his incentives to be candid with his readers. A reporter who can generate interesting stories simply by lunching with the right people is not about to bite any of the hands that feed him.

And if the phrase “anonymous source” still makes you think of Robert Redford in a parking garage, banish the image from your mind. Many “anonymous” sources are actually officials who are openly briefing perhaps dozens of reporters at once. The identity of the source is known to every reporter in the briefing room, but they all promise not to tell their readers who it is. In that situation, the sole purpose of anonymity is to destroy accountability. Why should a federal court be deprived of relevant evidence just because reporters are docile enough to agree to these ground rules?

While Grannis makes some good points, he is less than clear about a viable solution to his complaints about the bill. He clearly rejects the bill as “an affront to our system of justice.” But what is the alternative? No federal protection at all?

The bill does indeed have a few problems. First, its exception for private information is too limited, covering only health and financial information. The bill attempts to define specifically the circumstances where requiring disclosure of anonymous sources will be required, but the pitfall is that it excludes far too much. As I have argued previously in connection with government leaks, the journalist privilege should protect whenever the leak is in the public interest. It should not protect leaks of information that invade people’s privacy without any corresponding benefit to society, such as the leaks about Steven Hatfill being a person of interest. The privilege should not protect against detrimental leaks such as the Valerie Plame leak that have no compelling public interest — these are leaks designed to injure and retaliate, and they serve no good purpose.

Second, as Grannis notes, the bill doesn’t protect journalists when Congress is seeking the information:

Ironically, the sponsors of the “Free Flow” bills do not propose to let reporters keep any secrets from them. Their proposed law would apply whenever a “Federal entity” wants a reporter to testify, and “Federal entity” is defined broadly to include courts, prosecutors, and executive or administrative agencies – but not Congress. Apparently, the sponsors think it’s OK to let reporters stiff the courts as long as they answer questions from Congress. Unfortunately, Congress can’t do justice for victims in individual cases. Only the courts can – which is why courts need the truth every bit as much as Congress does.

One point to the bill’s credit is that it applies to anybody engaged in “journalism,” which it defines as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” Sec. 4(5). This definition purportedly doesn’t apply only to mainstream media journalists but also to bloggers, book authors, and other writers. It is very important that everybody engaged in journalism be protected equally, and it appears that the bill does this.

So my reactions to the bill are mixed. In many respects, it is quite good, but it does not do enough to avoid protecting the bad leaks.

Grannis has another extensive and thoughtful post about the bill here.

My earlier posts about the journalist privilege include:

* Journalist Privilege and the Valerie Plame Case (July 2005)

* Journalist Privilege and Law Enforcement Leaks (November 2005)

* Whistleblowing, Journalist Privilege, and NSA Surveillance (December 2005)

* The Steven Hatfill Case, Law Enforcement Leaks, and Journalist Privilege (July 2007)

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2 Responses

  1. “Leaks by government officials are often self-serving, damaging to individuals, and not in the public interest. This was the case, in my opinion, with the Valerie Plame leak.”

    I’ll grant you damaging & non-public interest but what was Richard Armitage’s motive again?

  2. Mark Grannis says:

    Professor Solove:

    Thanks for your attention to this issue, and of course for the links to my own posts about it. I guess I have to plead guilty to the charge that I was “less than clear about a viable solution.” Let me be clearer.

    One viable solution is to do nothing. Importantly, this would not be (as you say) “no federal protection at all.” On the contrary, the federal courts generally refuse to compel reporters or news organizations to produce confidential information unless the information is “necessary” or “critical” to the case (i.e., more than mere Rule 26 relevance), and the party who wants the information has exhausted all reasonable alternatives for getting it. That test has provided excellent protection to the press for many years — 35 years in some circuits. The reason the press wants a federal shield law now isn’t because they currently have no protection; it’s because they’ve abused the protection they have and they want to be let off the hook.

    Of course, advocating this status quo solution implies that I do not think there is any problem that needs to be fixed, which is true. But for anyone who does believe there is a problem — a need to do more to protect whistleblowers, for example — I have also suggested the possibility of a “reporter-whistleblower privilege” rather than just a “reporter’s privilege.” Thus, for example, Congress could grant reporters a privilege to conceal the identity of any source who gave the reporter information about violations of law, gross mismanagement or waste, abuses of authority, or threats to public health or safety — the things covered by the Whistleblower Protection Act of 1989.

    There are tradeoffs associated with these proposals. The first — leaving the issue with the courts — has been criticized as insufficiently clear and predictable. I’m not sure why anyone thinks judicial decisions in this area are less clear and predictable than in other areas, and I confess it seems to me sometimes as if the press thinks the only sufficiently clear and predictable rule would be absolute privilege in all circumstances. The great merit of leaving it with judges is of course that the rule is flexible enough to apply to a wide range of situations, including whistleblower cases on the one hand and vindictive smears on the other. It may be that we need to sacrifice some predictability to have that much flexibility.

    As for the second solution, things like mismanagement, waste, and abuse are often in the eye of the beholder — as indeed is “whistleblowing” — but I think a “reporter-whistleblower privilege” could be made fairly clear and predictable as such things go. But I think this would not be acceptable to media advocates, because it would not cover the vast majority of anonymously sourced news reports. This is the central intellectual dishonesty in the media’s discussion of this issue: They talk about a privilege to protect whistleblowers, but that’s not what they really want or really need. They want a privilege that will protect them even when they’re just passing on unimportant yet extremely harmful gossip. To carry on a multi-year lobbying campaign as they have without acknowledging this strikes me as basically fraudulent.

    If the press wants a privilege as broad as “Free Flow” would give them, let them come clean about it — and then justify why innocent victims should suffer for their reckless servility. We’ll see how many members of Congress want to explain to their constituents why they would vote for anything like that. If the press won’t come clean about what they want, Congress should send them packing.