ABA Chicago: Evolution of Reporter’s Privilege and Shield Laws

By Justin Silverman

The concept of a reporter’s privilege continues to evolve — and more so now than ever, be debated.

Branzburg v. Hayes determined such a privilege to fall outside constitutional protection, but nevertheless asserted the need to protect journalists and proposed a test to do so. Some jurisdictions established such tests and some did not, resulting in an inconsistent framework of press protection. In 2003, Judge Richard Posner of the 7th Circuit wrote a stinging criticism of courts allowing journalists to avoid testifying, saying they “have been skating on thin ice” and “can certainly be questioned.” Now two bills are in Congress that would allow, to differing degrees, journalists to refrain from testifying about their sources.

A recent American Bar Association panel addressed this evolution, discussing the potential remedies and pitfalls of federal shield laws. As an ABA student liaison, I attended the presentation during the association’s annual meeting in Chicago. Here is a review of the panelists and what they said:

Guylyn Cummins is a partner at Sheppard Mullin Richter & Hampton LLP and director of the ABA Forum on Communications Law. She began the panel by giving a synopsis of shield laws and the notion of reporter’s privilege. The trend now, she said, is for courts to force journalists to testify about their sources, the reality of which has compelled the most recent federal shield bills. Such a trend can be found in cases involving scientist Wen Ho Lee, during which reporters were subpoenaed to give up the source of a leak, and reporter Toni Locy, who served time in prison for refusing to disclose a source.

The Locy case, in particular, “has had a trickle down effect and it’s been seen in other cases,” Cummins said, noting also that while reporters are in the courtroom testifying, they are not investigating and doing their job. This, she said, is a real disservice to not only the press, but to the public who relies on the information that reporter would otherwise have provided.

Responding to a question about how a federal shield law would distinguish between the “tabloid reporter” paying for news and the traditional journalist, Cummins said more protection is usually provided for those who simply “receive information.” For example, many celebrity magazines pay sources for information whereas traditional journalists do not. If that information is being leaked illegally, that magazine may be complicit in a crime because it paid a source to commit that crime.

Patrick Fitzgerald is a U.S. Attorney for the Northern District of Illinois. He served as special counsel to the Valerie Plame case, which involved the CIA agent’s name being leaked to a reporter. Fitzgerald said he joined the panel not to endorse any legislation, but to provide “context” to the federal shield law debate. He began by explaining that there is a common quest for the truth shared by the collective courts and newsrooms. Although a shield law would help protect journalism, it would make it significantly more difficult to provide the court with information. The results, he said, could be severe. Consider the BALCO case, during which the defendant moved to dismiss the entire indictment because it claimed the prosecution leaked confidential information. After a reporter testified to the source of that leak, the court learned the information actually came from the defendant’s counsel.

“Every time a reporter has to testify, that’s a difficult thing,” Fitzgerald said. “But a case could have been dismissed for no reason.”

He also noted that no other profession can agree to keep sources confidential despite a court ruling, like those in journalism claim they can. If, for example, a CIA agent could learn the whereabouts of Osama Bin Laden only if the source were to remain anonymous, he said, that agent could not do so against a court order. Why then should journalists be different: “If we had a shield law that took millions of reporters and everyone that blogs, we’d be giving them a power no one else has.”

“It’s very interesting that Branzburg went from a holding that a reporter must testify to a ruling of 4 and half to 4 and half,” Fitzgerald said. “If there is a federal shield law that puts the decision [of who is a journalist] in the judge’s lap, that ruling needs to be followed.”

Judge Reggie Walton is a U.S District Judge for the District of Columbia. He presided over such relevant trials as that of I. Lewis “Scooter” Libby, who was convicted of perjury in the Plame case.

It was also Walton who decided to not only fine Locy for each day she remained in contempt, but to require those fines be paid by the reporter herself. The case involved bio-weapons expert Steven Hatfill, who was reported as being named “a person of interest” in the 2001 anthrax attacks that killed five people. Locy reported leaked information on the investigation and as a result, Hatfill lost a professorship and was driven to “financial ruin,” Walton said. Only through identifying the source of Locy’s report, could the innocent Hatfill seek to rebuild his reputation and eventually settle with the government for $6 million.

“Had there been a shield law in place, Mr. Hatfill, in my opinion, would not have been able to receive the financial remuneration he did,” Walton said.

Chicago Sun-Times political reporter Abdon Pallasch is the named respondent in McKevitt v. Pallasch, the case in which Judge Posner made his criticism of a reporter’s privilege. In that case, the court ordered him to turn over tapes of interviews he conducted with the main witness in a terrorism trial.

Pallasch began by reminding the audience the importance of investigative journalism, especially in a city like Chicago that has a history of corruption. He noted the stories on Chicago’s Hired Truck Program which led to 49 convictions. A shield law would make sure such corruption is reported, he said. It would add consistency to a legal system that may or may not protect journalists depending on where they work.

Said Pallasch after the meeting: “Sometimes you luck out with a judge who reads Judge Posner’s opinion carefully and sees his line where Posner says that a subpoena to a reporter should be treated like a subpoena to anybody else — because it’s not like we have a bill of rights that singled out a single profession for special treatment — and sometimes you will get a judge who will conclude it is not reasonable to ask a reporter to go through 10 years of notes and tapes searching for relevant and legible information.”