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In Light of Miller/Cooper Case, a Federal Shield Law is Vital for Freedom of the Press
July 06, 2005
PEN USA has been concerned with the recent cases of journalists risking imprisonment to protect their sources, especially the recent order to send Judith Miller to jail. Shield laws to protect journalists from compelled disclosure are now more important than ever—the Free Flow of Information Act is now pending before Congress.
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After the Supreme Court refused last week to hear the appeals of reporters Matthew Cooper and Judith Miller, The New York Time’s reporter Judith Miller was ordered to jail today until she agrees to testify about the name of her source in the leak of CIA agent Valerie Plame’s name, or until the end of the grand jury’s term in October. Separately, Time magazine’s Matthew Cooper agreed to testify to grand jury about the name of his source, stating that his source was “comfortable” with the testimony. These events illustrate the urgent need for a federal shield law to protect journalists in the future from such compelled testimony about their sources. PEN USA therefore urges its members to support the Free Flow of Information Act now before Congress.
PEN USA’s First Amendment Action Committee has been concerned about the recent increase in cases of journalists who have been threatened with jail time for refusing to reveal their sources. Seldom has the threat to the freedom of the press been so clear: On June 27th, the Supreme Court refused to hear the appeal of The New York Time’s Judith Miller and Time magazine’s Matthew Cooper, and thus let stand a United States District Court contempt order against the two for refusing to name their sources in the investigation of who leaked the identity of CIA agent Valerie Plame. Less than two weeks later, District Court Judge Thomas Hogan ordered Judith Miller sent to jail until she gives the name of her source to the federal prosecutor.
Additionally, this past summer, five reporters were held in contempt for refusing to disclose sources used in reporting on Wen Ho Lee, the former nuclear scientist who was the suspect in an espionage case. Leaked information from the BALCO steroid grand jury investigation could leave some Bay Area reporters facing penalties for not revealing their sources.
Particularly disturbing to PEN USA’s First Amendment Action Committee, Jim Taricani, reporter for a Rhode Island television station, was placed under house arrest for six months for declining to reveal who provided him with a secret FBI tape.
In response to the increase in cases like this, bipartisan shield law bills were introduced in Congress by Senator Richard Lugar (R-IN) and Congressman Mike Pence (R-IN 6th). Titled the “Free Flow of Information Act of 2005”, H.R. 581 and S.340, if enacted, will protect journalists at a Federal level from being compelled to disclose information and names of sources in all but the most extreme circumstances.
Shield Laws, Generally
Shield laws explicitly recognize a journalist’s privilege to hold and receive information and to remain silent about the identity of a source. Currently, there is no federal-level shield law; instead, 31 states and jurisdictions offer some kind of protection for journalists who wish to keep their sources confidential. Therefore, journalists subpoenaed by a federal court may not have the protections provided to them under state law. For example, Jim Taricani was placed under house arrest by a federal court for protecting his source, even though his state, Rhode Island, has strong shield laws.
There are also varying levels of protection at the state level. The 1972 Supreme Court Case of Branzburg v. Hayes recognized a basic freedom of the press under the 1st Amendment; however, the Court was unable to give much guidance as to its scope and form. As a result, states have more or less been left free to decide where the line should be drawn between the right to subpoena information and freedom of the press.
These varying levels of protection can be seen most frequently in criminal cases: A number of states, including Michigan, Minnesota, and Rhode Island, have statutes that recognize the reporter’s privilege. Nonetheless, those state courts have at times compelled disclosure when prosecutors have issued subpoenas.
(http://www.abanet.org/forums/communication/comlawyer/winter00/jassy.html).
Because most of the recent journalists subpoenaed were subpoenaed in criminal cases, it is not certain that their states’ shield law would have been able to help them. Furthermore, certain states offer “qualified” immunity from disclosure depending on the circumstances. Example of this qualified immunity are shield laws that offer protection for sources or information only if the reporter expressly promised confidentiality. In other states, the courts have rejected the notion that this protection can be limited. In Montana and New York, the protection is absolute.
(http://www.splc.org/legalresearch.asp?id=31; http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws).
The Free Flow of Information Act of 2005
The lack of a federal shield law leaves journalists vulnerable to the whims of their state governments and large loop-holes in state shield law policies. When journalists are called to appear in federal courts, they have no guarantee of protection at all. This is why The Free Flow of Information Act of 2005 is so important. It will provide clear and consistent protection for journalists around the country to keep their sources and information private, regardless of whether they are asked to disclose in state or federal court or by any other government official.
The Free Flow of Information Act was introduced in the House of Representatives and the Senate as H.R.581 and S.340, respectively, on February 2, 2005. It prohibits the federal government from compelling members of the media from having to testify or produce any document unless a court determines by “clear and convincing evidence” that there is no other way to obtain this information, and that the information sought is essential to the case. The bills are currently pending in House and Senate Committees on the Judiciary.
In his introductory remarks to the House, Congressman Pence said, “now is the time for Congress to reassert the first amendment, freedom of the press, vigorously by enacting a Federal media shield. Nothing less than the public’s right to know is at stake.”
Likewise, Senator Lugar stated in his introductory remarks that as we are seeking to defend freedoms around the world, we must make sure we do not let those freedoms erode at home, adding that “[a] cornerstone of our society is the open market of information which can be shared through ever expanding mediums. The media serves as a conduit of information between our governments and communities across the country.
“It is important that we ensure reporters certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment. This includes the right to refuse to reveal confidential sources. Without such protection, many whistleblowers will refuse to step forward and reporters will be disinclined to provide our constituents with the information that they have a right to know. Promises of confidentiality are essential to the flow of information the public needs about its government.”
According to PEN USA’s Freedom to Write Co-Chair, 1st Amendment attorney Stephen Rohde, “the need to protect journalists through a uniform federal shield law has never been more urgent. Just when we need a robust, truth-telling press more than ever, the courts are showing a disturbing hostility to reporters. This is often clothed in the refrain that when it comes to responding to a subpoena, reporters are ‘no better than anyone else’ and are ‘not above the law.’
“But when they are protecting their confidential sources, journalists are invoking a privilege as important as the attorney-client or doctor-patient privilege. That privilege derives from nothing less than the First Amendment which singles out the press for constitutional protection. Protecting sources is as old as journalism itself. It helps guarantee a free flow of information on which the public depends. Congress needs to step in and reinforce the First Amendment with a strong, nationwide shield law.”
PEN USA supports the Free Flow of Information Act of 2005.
Recommended Action
Write your senator and congressperson and tell them that you support the Free Flow of Information Act and freedom of the press. Let them know that you hope that the threat of compelled disclosure not be allowed to chill journalists’ ability to seek out and report on important issues of our time. Find your members of Congress at: http://www.congress.org/congressorg/home/
You can also send a letter to the heads of the Committees on the Judiciary:
Sentator Arlen Specter, Chair
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510
Honorable F. James Sensenbrenner, Jr. , Chair
Committee on the Judiciary
United States House of Representatives
2449 Rayburn House Office Building
Washington, DC 20515
SAMPLE LETTER
Dear Senator/Congressman/Congresswoman:
I am writing to you from PEN USA, part of a world-wide organization of writers with an 84-year history of defending freedom of speech through the written word.
PEN USA is deeply concerned about the recent increase in cases of journalists who have faced jail time for refusing to reveal their sources. In light of the Supreme Court’s refusal to hear the appeal of The New York Time’s Judith Miller and Time magazine’s Matthew Cooper, and the District Court’s subsequent order to send Judith Miller to jail, it is now clear that federal legislation is essential to protecting the freedom of the press and the public’s access to accurate news.
Therefore, I urge you to support the Free Flow of Information Act of 2005, now pending before the Committee on the Judiciary in both the House and the Senate. This Act will finally create consistent and clear law for journalists, in line with the Justice Department Guidelines adopted in 1973. Currently, 31 states have shield laws in place, though there is yet no federal shield law. Without such protections, journalism will experience a dire chilling effect: Whistle-blowers will be reluctant to come forward, and the public will ultimately suffer as reporters lose their ability to engage in confidential communication with key sources of information.
Your support of this legislation will help insure the continued strength of our cherished 1st Amendment guarantee of freedom of the press.
Sincerely,
Related Links:
Newspaper Withholding Publication of Article Due to Fear of Jail or Fines
Time Magazine Will Hand Over Journalist’s Notes
Journalists Cooper and Miller Face Jail Time After Supreme Court Refuses to Intervene
Washington, D.C.: Supreme Court Refuses to Hear Reporters’ Case