On June 1, 2015, a landmark gathering of journalists will take place at the National Press Club in our nation’s capital.  On that evening, more than a dozen journalists will assemble — each of whom, at one point in their careers, chose to spend time behind bars rather than give up the identity of a source.  Although the story of each journalist is different, each has demonstrated the value that they all place on truth — making them exactly the type of person who is qualified to present at a Symposium on the First Amendment. 

Rarely would anyone be willing to go to jail for a lie, or without a compelling, principled reason.  Therefore, there is no better way for the American people to be persuaded of the veracity of an anonymous source than to learn that the journalist who wrote that story was willing to pay a significant price to protect the identity of that source. 

Kudos to Brian Karem, Executive Editor of the Montgomery County and Prince George’s (Maryland) Sentinel Newspapers — one of that distinguished group of reporters who chose jail, rather than break his word to a source — for organizing this event.

The Symposium is being sponsored by a diverse group of organizations.  These include professional organizations, such as the National Press Club Journalism Institute and the Reporters Committee for Freedom of the Press, and range from progressive groups like the Institute for Public Accuracy, to bi-partisan groups like the Free Speech Coalition, to conservative organizations like the U.S. Justice Foundation and the Western Journalism Center. 

Importantly, the focus of this Symposium is “Supporting International Whistleblowers.”  Note that, even now, these distinguished journalists focus their primary attention on protecting their sources — not themselves. 

1.  Considering a National Shield Law after Branzburg

The notice announcing the Symposium indicates that one of its additional purposes is to call for a national shield law.  The desire to enact such a law, to avoid the need for other journalists to make the difficult choice that the speakers once made, is fully understandable.  Numerous  “shield law” bills have been introduced in Congress over the decades, but none have ever been enacted into law.  Perhaps one of the reasons for this is that the process of drafting a shield law reveals the existence of a Constitutional conundrum that has yet to be resolved. 

Perhaps the greatest single Constitutional problem in designing a shield law is defining the person who qualifies for its protection.  Government coercion of journalists is certainly not limited to employees of the establishment press.  Indeed, among the distinguished group of journalists who have been jailed for refusing to disclose a source is a blogger — an individual who would not be covered by most shield laws.  Who should be protected by a shield law?  And does the Freedom of the Press allow a government to grant that favored status to some, but not to all?

Over 43 years ago, the U.S. Supreme Court issued its only decision that ever directly ruled on the existence of a journalistic privilege to refuse to reveal a source.  In Branzburg v. Hayes, 408 U.S. 665 (1972), in a 5-4 decision, the Court declined to find that a reporter for the Louisville Courier-Journal had either a Constitutional right or a common law privilege to be free from a subpoena to reveal the identity of his source before a Grand Jury.  The Court issued four separate opinions that day, deciding three somewhat different cases, each from different jurisdictions — Branzburg from a Kentucky state court, another case from a Massachusetts state court, and a third case from the U.S. Court of Appeals for the Ninth Circuit.  Over the past four decades, the application of the Branzburg decision to real world situations has proven to be problematic at best.

The Branzburg majority opinion was written by Supreme Court Justice White, joined by Chief Justice Burger, and Justices Blackmun, Powell, and Rehnquist.  However, Justice Powell, who provided the fifth vote, also filed a separate concurring opinion, in which he attempted to narrow the reach of the Court’s decision.  His concurrence presented a greater sympathy to the Freedom of the Press, and suggested that the scope of the government’s power had to be resolved on a case-by-case basis. 

Justice Douglas dissented, concluding that a newsman had an absolute right not to appear before a grand jury.  He even attacked the institutional press for its pragmatic and unprincipled litigation strategy:

“The New York Times ... takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government....  My belief is that all of the ‘balancing’ was done by those who wrote the Bill of Rights.  By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case.”  [Id. at 713.]

The other dissenters, Justices Stewart, Brennan, and Marshall, would not go as far as Douglas, instead advocating a complicated balancing test to be applied on a case-by-case basis.  However, even Justice White understood that such a “case-by-case method” would not achieve the objective of the journalists.  He quoted from a law review note that explained that, under such an approach:

“…it will be difficult for potential informants and reporters to predict whether testimony will be compelled since the decision will turn on the judge’s ad hoc assessment in different fact settings of ‘importance’ or ‘relevance’ in relation to the free press interest.”  [Id. at 702.]

For more than 40 years, lawyers, judges, and journalists have been examining the nuances of the Branzburg case.  That decision has been invoked as controlling precedent by government and journalist alike, and used with equal agility by judges who quash subpoenas to reporters and by judges who send reporters to jail.  Such is the nature of a case-by-case approach, using balancing tests, based on vague notions of reasonableness, and necessity.  These are the types of rules that keep lawyers employed, vesting excessive power in the judicial branch to weigh all of the “facts and circumstances” before telling a journalist what he or she must do.  Such an approach to resolving a journalist’s duty to divulge sources resembles less the rule of law, and more the rule of an elite body of lawyers, working for the government, dressed in judicial robes. 

Justice White addressed directly the thorny problem of who would benefit if such a privilege were recognized.  He expressed concern about granting special immunities to professional journalists that “other citizens,” “[c]itizens generally,” the “public generally,” and the “average citizen” “do not enjoy.”  Id. at 682, 684, 690.  The basis for that unease was the “traditional doctrine that liberty of the press 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.”  Id. at 704.  And the problem could not even be cured by extending immunity to non-establishment journalists, since “[t]he informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.”  Id. at 705.

2.  “Free Flow of Information” for Some — But Not for All

Contrast the Branzburg Court’s First Amendment concern about allowing the government to favor certain media with the approach taken in a proposed national shield law bill.  Introduced in various forms for many years under the name the “Free Flow of Information Act,” U.S. Senator Chuck Schumer (D-NY) introduced such a bill, S. 987, in the 113^th Congress.  Significantly revised, this bill was favorably reported out of the Senate Judiciary Committee, but was never brought to the Senate floor, as it faced strong opposition from those who believed that it would impede federal law enforcement. 

As reported from Committee, the bill protected only what were termed “covered journalists” — a category that took hundreds of words to define.  The official summary of that definition is set forth in full below.  Really, no one should be forced to read this summary of the entire definition, and we do not recommend it, but we set it out here to illustrate how difficult it is to draw distinctions between who is protected and who is not.  Senator Schumer’s bill defined “a ‘covered journalist’ as a person who”:

“…is, or on the date on which the protected information sought was obtained or created by the person asserting protection, was [i] an employee, independent contractor, or agent of an entity or service [ii] that disseminates news or information by various means (newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service; news program; magazine or other periodical; or through television or radio broadcast, multichannel video programming distributor, or motion picture for public showing) and who, [iii] with the primary intent to investigate events and procure material to disseminate news to the public, engages, or as of the relevant date, [iv] engaged in the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting, or publishing on such matters through specified methods; or

“...at the inception of the process of gathering the news or information sought, [v] had the primary intent to investigate issues or events and procure material in order to disseminate news to the public and regularly conducted interviews, reviewed documents, captured images of events, or directly observed events, and either: (1) would have been included as a member of specified news or information services for any continuous 1-year period within the 20 years prior to the relevant date or any continuous 3-month period within the 5 years prior to the relevant date; (2) had substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications within 5 years prior to the relevant date; or (3) was a student participating in a journalistic medium at an institution of higher education on the relevant date.”

Without a scorecard, it is almost impossible to tell exactly whom this definition includes and whom it excludes — but three observations can be made.  First, the bill was designed primarily to protect Senator Schumer’s friends in the New York City-based institutional media.  Second, the bill was tweaked to cover other interests who had Washington lobbyists on retainer.  (Just imagine how much lobbyists were paid to insert each of the words in that definition to ensure that their clients would be protected, in this bill that was never enacted.)  Third, bloggers, tweeters, and websites that carry editorial content, rather than news, groups that specialize in working with whistleblowers, and citizen activists of all stripes were placed outside of the Schumer zone of protection.  In truth, the rest of the bill reveals that it is nothing more than another version of the case-by-case approach, at the discretion of a federal judge — an approach that Justice White recognized would never solve the problem. 

3.  The Political Realities of a National Shield Law

At the time that the Schumer bill was being considered, commentators observed that the bill “draws the line at posts on Twitter, blogs, or other social media websites by nonjournalists.”  The politics as to whom the bill covers — and who it doesn’t cover — is obvious.  But what about the Constitution’s Free Press protection?  Can “citizen journalists” and “citizen activists” be excluded on the theory that a narrow definition of the press was “a good compromise?”

Many were not willing to make that compromise.  Viewing journalism as an “activity,” rather than a “profession,” critics of the language in the Schumer and other Shield Law bill wordings note that such “bill[s] would exclude an entire class of reporters who play a vital role in delivering news to their communities.  Instead of trying to cast a tight definition of who is and isn’t a ‘journalist,’ Congress should be protecting journalism as a whole.”  However, if the “lonely pamphleteer” was also to be declared immune from a grand jury subpoena, our current system of compelled testimony would be dramatically altered. 

The existence of insoluble Constitutional dilemmas often seems to reveal that the Founders’ original Constitutional plan has been abandoned in some way.  Government demands for the sources of stories generally arise in the context of the enforcement of the federal criminal code.  But few federal crimes have any Constitutional underpinning whatsoever.  The U.S. Constitution empowers Congress to define very few laws — a Constitutional principle that was abandoned in the late 19^th century.  But if the power to criminalize behavior were ever to revert to the states, there would be few criminal prosecutions, and little need for a federal shield law.  However, with over 6,000 federal criminal prohibitions, there is little danger of federal prosecutors not having enough work to do. 

Journalist shield laws are not just the product of lobbying by an industry that looks to protect itself.  In dealing with Congress, lobbyists for media conglomerates are pushing against an open door.  Congress is fully complicit in targeting the benefits of such laws to the institutional press, because, in the modern era, incumbents often have less to fear from the biggest paper in their district than from a pesky blogger who digs to find and publicize an embarrassing truth.  Indeed, there are numerous ways that the government can exert pressure to reign in the institutional press, especially in an era of concentrated ownership of media. 

It is believed that only six corporations now control 90 percent of the Media in the United States.  Concentrated ownership might be thought to create concentrated power that could resist government more effectively — but the reverse is more likely to be true.  With ownership interests that extend across multiple media platforms, including highly regulated outlets such as television and radio licensees, and with shareholders to report to, these Big Six are more likely to accommodate the government than to fight it.  Budgets for investigative journalism are modest, and being cut further.  It is often those pesky little bloggers, websites, and “single-issue groups,” especially those that have “agendas,” that put fear in the hearts of incumbent Members of Congress and Senators — 90-plus percent of whom again will be candidates in the next election.  Why would a Congress full of candidate politicians want to protect those who effectively criticize and expose their — shall we say — shenanigans?  

4.  National Shield Law or Incumbent Protection Act?

The sponsors of a national shield law may be legislators, but they are also politicians of the first order.  Their first role is to protect their own reputation and to preserve their tenure in office.  Their second job is to protect the reputation of government generally.  As Professor Andrew Bacevich observed, “any version of truth handed down from on high — whether by presidents, prime ministers, or archbishops — is inherently suspect.  The powerful, I came to see, reveal truth only to the extent that it suits them.”  Washington Rules (Metropolitan Books: 2010), p. 3.  There is every reason to believe that this truth applies to the sponsors of national shield bills.

Senator Charles Schumer has been quoted as saying that “there is no First Amendment right for gathering information....”  Similarly, U.S. Senator Dick Durbin has shown his bias in stating that “[e]veryone ... has a constitutionally protected right to free speech.  But when it comes to freedom of the press, I believe we must define a journalist and the constitutional and statutory protections those journalists should receive.”  These professional politicians know who their most dangerous enemies are — and they are not the institutional press.

Indeed, in other areas, incumbents show their preference for the institutional press.  Some states have enacted “anti-eavesdropping” or “anti-wiretapping” statutes, which can impose hefty criminal penalties.  But many of these laws are applied only to ordinary citizens who dare to film the police conducting arrests, and state legislatures carve out protections for the institutional press.

However, in areas where having a federal shield law would be the most useful, such as in protecting sources who leak documents that were classified only because they reveal a truth that the government would prefer to hide (such as regarding corruption or deception), the Schumer bill would do little.  Indeed, the Schumer bill gives federal judges the latitude to override the protection of the statute in cases where the statute would be of most value.  And, as weak as the bill was, it was stopped mostly by Republican opposition that took the position of the intelligence and law enforcement communities at every turn.  For the foreseeable future, nothing good is likely to come out of Congress, no matter which party is in charge. 

So, while it is perfectly understandable that the institutional press would want a national shield law, the only type of law that the federal government is likely to enact would be one that even the institutional press should not want.  The federal government wants to keep both potential sources of insider information and journalists in a perpetual state of fear — so that the government can better protect itself from the public’s right to know.  And if the institutional press were the only beneficiary of such a national shield law, it doubtless would be subject to being struck down as a violation of Freedom of the Press, as described in numerous Supreme Court cases, some of which appear in the Appendix, which follows.

William J. Olson, Herbert W. Titus, and Robert J. Olson are attorneys with William J. Olson, P.C. of Vienna, Virginia.  E-mail wjo@mindspring.com, visit www.lawandfreedom.com, or follow www.Twitter.com/OlsonLaw.
 

Appendix: U.S. Supreme Court Cases Rejecting Limitations on Who Is Protected by Freedom of the Press

“The liberty of the press is ... [a] fundamental personal right [and] ... not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”  Lovell v. Griffin, 303 U.S. 444, 450, 452 (1938).

“But the concept that government may restrict the speech of some elements of our society in  order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed ‘to secure “the widest possible dissemination of information from diverse and antagonistic sources,”’ and ‘“to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”’”  Buckley v. Valeo, 424 U.S. 1, 48-49 (1976).

“The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition....  The very task of including some entities within the ‘institutional press’ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England — a system the First Amendment was intended to ban from this country....  In short, the First Amendment does not ‘belong’ to any definable category of persons or entities:  It belongs to all who exercise its freedoms.”  First Nat’l Bank v. Bellotti, 435 U.S. 765, 801-02 (1978) (Burger, C.J., concurring).

“[T]he media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.”  Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978).

“Wisely, in my view, Justice Powell does not rest his application of a different rule here on a distinction drawn between media and nonmedia defendants. On that issue, I agree with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech. None of our cases affords such a distinction; to the contrary, the Court has rejected it at every turn.”  Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 773 (1985) (White, J., concurring).

“Members of this  Court (the four who join this opinion and Justice White and the Chief Justice) agree today that, in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities.”  Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 784 (1985) (Brennan, J., dissenting).

“Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.”  Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991).

“In answering this question, we draw no distinction between the media respondents and Yocum [a non-institutional respondent].”  Bartnicki v. Vopper, 532 U.S. 514, 525 (2001).

“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not.  ‘We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’”  Citizens United v. FEC, 558 U.S. 310, 352 (2010).