SHIELD LAWS FOR JOURNALISTS
Shield Laws in Journalism: Unconstitutional and Unethical
Shield Laws in Journalism: Unethical and Unconstitutional
by Tabitha Waggoner
In America, most scholars and journalists pinpoint the beginning of the dispute over shield laws and defining the reporter’s privilege with the controversial 1972 Branzburg v. Hayes case. Shield laws would privilege journalists so that they could refuse to testify in court. Paul Branzburg, a Louisville Courier-Journal reporter, had interviewed a number of people who were creating and using illegal drugs in the state of Kentucky. Eventually, Branzburg was subpoenaed twice to the state grand jury so that he could present his evidence and be used as a witness against the drug users. Believing that he had rights within the First Amendment that entitled him to keep his interviewees’ identities secret, Branzburg refused both to testify and to potentially reveal his sources.
Eventually the case went to the Supreme Court. The question: is it unconstitutional to subpoena news reporters to testify in cases such as Branzburg? Specifically, would doing so abridge the freedom of the press and freedom of speech? The Supreme Court ruled that the First Amendment did not give reporters a right not to testify and disclose the information they had—a duty any other citizen would be expected to adhere to. “Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation” (Oyez). Nothing was unconstitutional about subpoenaing reporters to court. Reporters, or journalists, are citizens with the same freedoms as non-journalist citizens. “The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter,” Judge Sentelle wrote for the three-judge panel of the Circuit Court of Appeals for the District of Columbia (West, 1951). Thus, Branzburg v. Hayes became the defining case for the so-called reporter’s privilege for the court system.
On the other hand, it became a rallying point for many journalists who called for a shield law then and now. However, the Supreme Court’s 5-4 ruling still stands today as the standard for similar disputes (such as Pappas and United States v. Caldwell, where two reporters were called to reveal trusted information about the Black Panther organization, a radical militant black rights group) over reporter’s privilege and whether or not reporters must reveal sources they promised to keep anonymous. The justices concluded “the fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court” (Oyez).
Reporters should be expected to testify in court whether or not their sources are anonymous; the fact that they are reporters does not give them a special privilege to keep their sources private from investigation by the government. Journalists must know when promising confidentiality to their sources is a good idea or a bad idea. A federal shield law for journalists would give the press unneeded, unconstitutional, and undeserved privileges, making the shield law unethical.
“Although the majority opinion in Branzburg stated that news gathering had some First Amendment protection, the Court has never clearly defined what that protection is or when it could be invoked” (Fargo 244). The Branzburg v. Hayes ruling, although firm in saying that reporters must testify in court if called, as any other citizen would, was left implied rather than stated outright. The ruling did not explain specifically how the First Amendment was involved in protecting the news-gatherer or how such protection could be used by reporters in a constitutional manner.
Some journalists hold up the First Amendment and the lack of a recognized reporter’s privilege as a waiver to justify their wants for a shield law or to not testify in court. However, Anderson points out that there is “less legal significance than meets the eye” when it comes to the First Amendment. (Anderson 430). Why is this? The press enjoys the same First Amendment rights as any other average, law-abiding American citizen.
The press is protected from government censorship, prior restraints and libel judgments because of the speech clause, not the press clause. (Anderson 430). The press clause is the part of the First Amendment that states freedom of the press as a right of the people, and the speech clause declares freedom of speech as a right of the people. Journalists are protected not because the press clause mentions them, but because they are American citizens with a right to free speech.
The Branzburg justices were afraid to state completely that there was indeed a privilege for journalists, because the freedom of the press clause specifically gives citizens the right to publish, thus making them journalists. At the same time, the freedom of the press given in the First Amendment reiterates what the freedom of speech clause is. With Branzburg and later press cases, differing opinions among justices suggested that the issue of whether the freedom of the press should mean more than a protection of all citizens’ right to publish still remained (Fargo, 244). Still, the justices were hesitant to define the press clause as meaning more than a citizens’ right to publish.
“In Branzburg Justice Douglas argued that the press needed an absolute privilege to protect source identities. He expressed fear that the government's power was becoming “more and more pervasive” and that the government would use that power to “suffocate both people and causes.” (Fargo 244). The fear of Douglas was that the government would use the fact that journalists have a citizen’s obligation to testify to an extreme. For example, what if the government began to use a certain journalist as a sort of secret investigator? The press is supposed to be free, without extra obligations to the government, like any other group of ordinary citizens. Yet as will be stated later on, a protection given by the government to protect journalists from the government could keep them from acting independently, an ethic of professional journalists.
This paper will hold to the Branzburg ruling that the First Amendment says nothing about whether or not a journalist should be forced to subpoena in court like other citizens. Some journalists say because freedom of the press is one of the five freedoms mentioned, this implies that they have a reporter’s privilege. David Anderson gives two choices. The press can be given no special legal preference or the press can be obliged special preferences but not First Amendment-wise; another choice is just reading the Press Clause and protecting the press that way. Non-constitutional protection of the press is preferable (Anderson 433-507). Non-constitutional protection is preferable because the freedom of the press is the only ‘right’ journalists have; it does not give special protection to a certain group, but to all citizens. So then a law apart from the Constitution is needed, according to Anderson.
Therefore, some journalists are rallying for a federal shield law known as the Free Flow of Information Act, which would allow journalists to refuse to testify in court and require them to reveal their sources. They feel this is needed because they think the free press is in a vulnerable position: a position where a journalist could face months, or even years in prison for reporting something and not revealing the source when commanded to.
If this act becomes law, journalists would only have to unveil their sources if all other forms of finding evidence had been exhausted. On the other hand, if the press is given this special privilege and if the government is given the duty to protect what journalism is supposed to be: an independent watchdog, or “Fourth Estate,” the government might corrupt the press; the press might find itself in an uncomfortable position relying on the government for protection through federal shield laws. “The paradox facing the press, however, is that it must rely on the very institution that it is to check for the granting of its professional power.” (Allen 304). Receiving protection from the organization one is supposed to keep an eye on is backwards, similar to a child having more authority than the parent. Journalists also have the duty to rebuke or commend the government on how duties are completed, or left incomplete.
Journalists “shouldn't be screaming for special privileges -- for what the government giveth, the government can taketh away” (Labbe). The press might find that they do not want to cross the government and lose their special privileges. If journalists are depending on the government for protections that are not sanctioned by the Constitution, they must remember those protections can be taken away as quickly as they are given. Additionally, journalists might not report honestly if the government has done something dishonest; journalism could be corrupted because they might not want to anger the government and lose their special protections.
What is supposedly hindering journalists from doing their job is the knowledge that they may be thrown in prison if they refuse to testify in court. This is a consequence that any citizen would face, whether or not they had promised their source that the information and the source itself would remain anonymous. Randall Eliason, a professorial lecturer in law from the American University, Washington College of Law and George Washington University Law School, former Assistant United States Attorney for the District of Columbia for twelve years and Chief of the Public Corruption/Government Fraud Section from 1999–2001, has plenty to say on shield laws. “Those reporters are facing jail not for what they wrote, but for defying a lawful court order” (Eliason, 16a).
Journalism itself is not the victim here. Those journalists who blatantly disobey a law that has been set in stone must not expect a free pass because they are journalists. Journalists must do everything they can within the law, for they are citizens.
“By refusing to testify, the reporters are placing themselves above the law and are shielding the true potential criminal. That's not conduct that should be encouraged by a federal statute” (Eliason, 16a).It would be contradictory of the government to pass a law that would allow a certain group of citizens to be free of a law. This special “privilege,” the Free Flow of Information Act “S. 1419” proposed by Senator Arnold Specter, a Republican from Pennsylvania, would set up a national expectation for the protection of confidential sources. The majority of American states have special shield laws for reporters; each one specialized state by state. Why is this bill needed in the first place?
The fact that journalists don’t have a shield law to back up their promise of source anonymity has not hindered some of greatest breakthroughs in journalistic writing.United States Attorney General Michael Mukasey laid it out loud and clear in his USA Today article.
“In the 36 years since the Supreme Court ruled that reporters – like their fellow citizens – have no First Amendment privilege to resist grand jury subpoenas, we have seen an explosion of news and information available to the public on every conceivable topic, belying the notion that a federal shield law is necessary to ensure the ‘free flow of information’ we see in newspapers, magazines and websites every day.”(Mukasey 12a).
Journalists can still flow information without resisting subpoenas, in fact some of journalism’s greatest stories, such as the Watergate scandal and the Clinton/Lewinsky scandal were covered without the protection of a shield law even though there was secrecy involved between the collector of information and the informant.
For example, with the Watergate scandal, a mysterious informant who would only be known as “Deep Throat” provided the Washington Post reporters with information they could have gotten nowhere else. Bob Woodward and Carl Bernstein wrote articles—even though they were being watched and threatened by the government—that rebuked the Nixon Administration’s misdeeds and eventually broke the Watergate scandal to the public. “Sources willing to face these more substantial risks of exposure are unlikely to change their minds because of the remote chance that a court might someday force a reporter to identify them. And sources who are really worried can always provide information to the press anonymously, not even revealing their identity to a reporter” (Eliason 16a).
For over thirty years, “Deep Throat” was only known to seven people; the writers kept him anonymous because it was his wish. Even though President Nixon, who resigned from office in 1974 due to the Watergate scandal, suspected who it was, he never called him out because he believed “Deep Throat” knew enough about the FBI to ruin the reputation of it and other similar organizations for years. “Deep Throat” was revealed by the press to be William Mark Felt, 91 years of age in 2005.
This is one example that reporters can still keep their sources anonymous without a shield law, and that a shield law is unneeded. Journalists can promise sources anonymity on the condition that they are not ordered to identify the source in court. It’s more likely that an identity would be leaked through an internal company investigation and not through the journalist personally. Besides, cases where a court commands for a source to be unveiled are quite rare (Eliason 16a).
Most journalists will never find themselves in a need of a national shield law; after all, many news gatherers think that anonymous sources should not be quoted and that they should at least be avoided. In fact, not every journalist is reporting high-profile stories like Watergate. The few who do are the ones who should be ready to take the risk their job requires; normally, they are ready for that challenge. “Courts have not recognized the right of journalists to refuse to identify sources as flowing from the First Amendment. But journalists have resisted identifying sources since before the American Revolution.”(McWhirter 23). Generally, federal prosecutors are hesitant to bring reporters before grand juries. Westphal explains that the Justice Department recognizes that it is important to leave journalists out of court cases as much as possible and generally journalists should be subpoenaed as a last resort (Westphal). In other words, federal prosecutors are not very likely to haul reporters to court—and reporters are to be used only if absolutely needed.
“…The day journalists become a protected class is the day we forget whom we work for: the public. Journalists should be subject to the same laws as the people they purport to represent when they conduct interviews, receive information (confidential and otherwise) and sit through torturously boring court cases and government meetings” (Labbe).
Reporters are American citizens, and they must play by the rules of the American Constitution. If they are given special privileges, it certainly does not pass the “equal under law” statute and is most certainly unconstitutional.
Some journalists supporting shield laws argue that they have a privilege to keep their sources private which is similar to the attorney-client privilege. Swinton notes the history of the two privileges and how reporters don’t have the same privilege with their anonymous sources. He speaks about the current state of each privilege and how the attorney-client privilege is respected in the courts but then explains that the reporter basically has no such rights when it comes to how the courts view them (Swinton).
Journalists should not have the same privileges as attorneys. One reason journalists don’t have the same privileges attorneys do is because journalists are not stewards of the law. Journalists are not stewards of their sources, like attorneys are. Journalists are not trying to help their anonymous sources gain anything or lose anything. If they are doing so, they are not journalists. Journalists are supposed to seek truth and report it, according to the code of ethics set by the Society of Professional Journalists.
To try to be fair and show both sides, Swinton points out problems that come along from the privileges that attorneys have with their clients. Swinton explains that just as everyone acknowledges the fact that the attorney-client privileges pros outweigh the cons, so would the privileges be with the journalist (Swinton 985). He does not really explain just how the pros outweigh the cons. There are two reasons this is disagreeable. First, an attorney and a journalist are two completely different professions, and thus cannot seriously be compared. A journalist is not trying to keep a source off of death row; an attorney is. Second, an attorney is fighting to keep his client safe—perhaps even from being executed unjustly. At the same time, an attorney might know his client is guilty of murder, but he helps to save his client by compromising with another party for a life sentence in prison. . Because of this, the attorney gets some privacy. Attorneys also have the opportunity to lie. For example, an attorney may realize that his client is guilty of murder, but he may have his client plead innocent. A journalist is not to lie or be deceptive under any circumstance. An attorney would never tell the court all the information that might convict his client even though he has that information. A journalist, on the other hand, has no such excuse to keep from testifying like any other citizen in this nation. Journalists have protection just like any other citizen. U.S. Marshalls are able to keep those who testify against potentially dangerous sources safe. Thus, journalists should try to not worry about whether or not someone will be waiting to kill them if they testify against their anonymous source.
Journalists exist to report the truth, whether it convicts or saves. They do not exist to safehaven criminals or limit the power of the government to save its people under dire circumstances.
If the journalist is concerned about breaking a promise to a confidential source, then they can choose to keep their promise, and live with the consequences. These consequences should not be different among American citizens just because the freedom of the press is within the First Amendment. Armor explains that a federal shield law would be unwise because it would mean reporters are less obligated to give evidence about a crime or relevant information in a civil case. It would even put reporters in a preferred position above the president (Armor, 12a).
Journalists do not deserve a pass from participating in the justice system of the United States. Such a thing would be unconstitutional, for it would give them a privilege that other American citizens do not have.
As Melanie Sill points out in her short article, people “want truth” (Sill 55). If we are forced to define journalism as the old journalism of newspapers and broadcasting, we would be lying to ourselves. In other words, what will happen to online newspapers, blogs and other forms of communication—or might it be called “journalism?”
If the government is forced to define journalism in order to keep a certain type of media safe, then the journalists have lost a more important battle. The battle that would be lost here is the understanding of true journalism. Journalism is the art of story-telling, but in a way that shows all sides—or warns you if it doesn’t, such as with editorials and opinion pages. Journalism is becoming increasingly difficult to define because of weblogs or online journals, internet news, and other forms of multimedia. A shield law such as the Free Flow of Information act would define journalism, but not necessarily in the traditional sense of newspapers and broadcasting. It might leave out online news or blogs. Many have forgotten what journalism is: reporting the truth.
Another reason that the Free Flow of Information Act should not be allowed to come into being is that it is both unethical and dangerous. Chuck Rosenburg, U.S. Attorney for the Southern District of Texas, has many arguments against this bill. He reminds readers that the bill “would effectively prohibit the Department [of Justice] from expeditiously issuing a subpoena to discover the identity of a source for a press report of the most dire criminal threats to public health and safety, unless the Department had prior independent knowledge of ongoing or impending criminal activity. The crime simply would not yet have occurred, as required by the proposed statute”(Rosenburg 308). This is extremely dangerous for American citizens. If the press has information that can save lives, it should be willing to impart that information.
“For example, the Department has recently investigated the distribution and administration of diluted or toxic counterfeit chemotheraphy drugs. If such activity were first reported by the press, the Department would need to instantaneously identify and locate any anonymous source for that story in order to minimize the further circulation and injection of these deadly concotions. This prohibition could effectively subject innocent patients to serous bodily harm or death”(Rosenburg 308). After all, another ethic of journalism is to minimize harm. Shield laws would have the potential to protect criminals, not journalists, in the long run. Additionally, while the anonymous source might be revealed, it would be the best thing, for it would save many lives. While this bill “protects” journalists and anonymous sources whether they be criminals or not, it is dangerous for the citizens of this nation. Information such as what Rosenburg uses as an example should not be hindered from being reported. Journalists need to remember that they also are ordinary citizens with a duty to tell the truth in a lawful manner, not muckrakers who want to get a good story that will be remembered for the next 50 years.
Is giving a journalist protection really unethical? There’s more to the story, and to the Free Flow of Information bill. The imminent and actual harm standard in the bill as the basis of a source’s disclosure, would be nearly impossible to prove. Time would be spent trying to prove the need for the source’s disclosure; time lost could mean lives lost (309).
This bill should not hinder the government from doing its job. However, that is what a shield law would do. It would, for example, clearly prevent the government from obtaining potentially life-saving source information in a murder for hire investigation because, while it may be possible to prove that the murder was “imminent,” it would be impossible to show that the murder presented “actual harm to the national security.” (309).
Shield laws would jeopardize the government’s power to protect the nation as a whole. This law would be passed to protect a criminal source or a source that could help truth be discovered or divert a disaster from occurring; it is most certainly both unconstitutional and more importantly, unethical.
Journalists should continue to do what they have done since the beginning of the press, without a federal shield law, understanding they have no true special privileges, and then journalists will continue to thrive that way. Journalists must remember that they are citizens of the United States of America. They must understand the challenges of their stories and anonymous sources, and deal wisely with them to the best of their abilities and within the laws of the land, for to do otherwise would not be ethical journalism or constitutionally lawful.
WORKS CITED
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Fargo, Anthony L. “The Journalist’s Privilege for Nonconfidential Information in States Without Shield Laws.” Communication, Law & Policy Vol. 7. Iss. 3, 241-273 Summer 2002. Ebscohost, Cravens Library, Western Kentucky University, Bowling Green, KY 8 Oct. 2008 <http://www.web.ebscohost.com>
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Mukasey, Michael B., “No Need For A Shield Law.” USA Today, News section. 12a. April 17, 2008. Ebscohost, Cravens Library, Western Kentucky University, Bowling Green, KY 8 Oct. 2008. <http://www.web.ebscohost.com>
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