Tag Archives: shield law

NEFAC honors James Risen, a free-press hero

James Risen

James Risen

James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.

On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented  with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”

Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.

My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:

There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.

Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.

Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.

The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.

More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.

Legislative committee debates shield law

180By Robert A. Bertsche

I attended Wednesday afternoon’s spirited hearing at the Statehouse on the proposed Massachusetts shield bill, before the Legislature’s Joint Committee on the Judiciary. The bill is titled the “Free Flow of Information Act,” H.1553, described as “An Act providing against compelled disclosure of certain information by the news media.” Here’s a quick account of the proceedings.

Bottom line: Passage is far from assured, but the bill got its most thorough airing in years. Longtime Boston news anchor and reporter Susan Wornick spoke passionately in favor of the bill, backed up by three media lawyers (including my partner, media lawyer Jeffrey J. Pyle) and Rep. Josh S. Cutler, D-Duxbury, one of the bill’s sponsors. The committee’s House vice chair, Rep. Christopher M. Markey, D-Dartmouth, was most outspoken in opposition.

Wornick, of WCVB-TV (Channel 5), recounted her ordeal of being almost jailed in the mid-1980s for refusing to reveal her confidential source to police and a grand jury investigating alleged corruption by Revere police. “I made this promise because this man had important information. Without his information, I could not have told the story, and law enforcement could not have done their jobs.”

“I was terrified,” Wornick recalled, but she said she received widespread public support for her courage in protecting her source. “People were infuriated that I was being harassed and demonized by law enforcement because I wouldn’t break my promise.” Ultimately the source identified himself in order to save Wornick from jail time. It was big news at the time; she received a standing ovation from a packed Boston Garden when she was introduced to the crowd at a Celtics game.

Susan Wornick

Susan Wornick

“We need a shield law in Massachusetts to that journalists can do their jobs,” she said. “Anonymous sources are crucial” to journalists — we all know that.”

Media lawyer Jonathan M. Albano followed. When he started working in this legal area in 1982, the most recent case on the subject was In re Roche, two years earlier, in which the Supreme Judicial Court noted that it might be beneficial if Massachusetts law provided reporters “more clearly defined protection against intrusive discovery” than existed under the common law balancing test then (and now) in force. With clearer standards in place, “news reporters and sources might be able to base their behavior on better defined expectations, thus encouraging informed expression,” the court wrote then.

“It has been 32 years since that case and there are still no definite rules in place to guide reporters,” said Albano, managing partner of Bingham McCutchen’s Boston office. “Today, whether a source will be protected, and whether a reporter will be required to testify about that source, depends on which judge you draw,” and that judge’s exercise of her or his discretion, he said.

Pyle, appearing on behalf of the New England Newspaper and Press Association (with 230 Massachusetts daily and weekly newspaper members), then described the provisions of the proposed shield law. “The bill provides much-needed clarity that would protect the future Susan Wornicks of the world,” he told the filled hearing room.

As Jeff explained, the proposed law would apply to “covered persons,” those working for “news media” and who prepared the information at issue in that capacity. “News media,” in turn, is defined to include not only mainstream and student media but also “any entity that is in the regular business of gathering and disseminating news or information to the public by any means….”

The bill offers a near-absolute privilege as to disclosure of information identifying any news source (whether confidential or not), subject only to an exception where necessary “to prevent imminent and actual harm to public security from acts of terrorism,” in which case disclosure may be compelled if disclosure of the source’s identify “would prevent such harm” and if “the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.”

The bill offers a qualified privilege as to unpublished information, the disclosure of which may be compelled only if a court finds, after notice and hearing, that there is “clear and convincing evidence” establishing that (1) the information is “critical and necessary to the resolution of a significant legal issue” before a governmental entity, (2) the information “could not be obtained by any alternative means” and (3) “there is an overriding public interest in the disclosure.”

Jim Taricani

Jim Taricani

Jeff reminded the committee of Providence television reporter Jim Taricani’s four months of home confinement in Rhode Island for defying a court order to reveal a source; James Risen’s ongoing battle to protect his source for national security secrets published in his 2006 book about the CIA; and Fox News reporter Jana Winter’s battle to protect a confidential source for her story about the notebook that James Holmes sent to his psychiatrist, previewing the shooting spree that resulted in the death of 12 moviegoers in Aurora, Colo. “In the absence of a shield law,” he said, “Massachusetts reporters face a real and imminent threat of going to jail” simply for doing their jobs.

Speaking for the Massachusetts Newspaper Publishers Association, attorney Peter J. Caruso Sr. told legislators that the bill offered them “the opportunity to provide courts, prosecutors, and litigants with “direction and clarity” as to the information that can be obtained from reporters.

Rep. Cutler, himself a former third-generation newspaper editor, assured his fellow legislators about what the proposed law is not: “It is not about protecting journalists — it’s about protecting journalism,” he said. It’s not the creation of a new evidentiary privilege, but rather the codification of an existing common law privilege. It’s not a “roadblock” to district attorneys, but rather “a road map setting forth the rules.” It’s “not a new, unproven legal theory,” but rather a piece of legislation already in place, to a greater or lesser extent, in 40 states. And it’s “not about helping media conglomerates,” but rather about “protecting the little guy,” including the small-town newspapers for whom even the “mere threat of a subpoena can have a chilling effect.”

When the floor was opened to questions, Rep. Markey, who worked for 15 years as a prosecutor in the Bristol County district attorney’s office, vigorously challenged the shield law advocates. He objected that the proposed law would deprive prosecutors of an important investigative and prosecutorial tool. He also lamented that as to identification of sources, the law would provide an undifferentiated privilege for reporters, the applicability of which would not vary based on the level of public importance of the issue about which information is sought. Markey said he believed the law would shift control of criminal investigations from prosecutors to journalists: “You’re putting the burden on government to show there are no alternatives” before seeking testimony from a reporter, such that a “journalist who hasn’t taken an oath is now the only person who has that knowledge” about certain criminal activity.

Albano disagreed, reminding Markey, “The journalist does not decide, the judge decides.” Markey retorted that the “clear and convincing evidence standard” to be met by those seeking a reporter’s testimony would prove a difficult hurdle to surmount. He ended with an emotional appeal, saying he is concerned about the law’s impact on “a 39-year-old mother who has a 19-year-old son who has been shot, and who is going to a wake that night,“ and who wants the police to do all they can to find her son’s killer. “You’re telling the police, ‘Go to everyone else, but don’t go to [the reporter]. “

Few of the other committee members spoke. State Rep. Sheila C. Harrington, R-Groton,  asked a few clarifying questions, but the committee co-chairs, Sen. Katherine M. Clark, D-Melrose,  and Rep. Eugene L. O’Flaherty, D-Chelsea, did not offer their views on the bill. As the hearing wound down, Sen. Richard J. Ross, R-Wrentham,  spoke directly to news anchor Wornick and saluted her for her battle to fight for her source 30 years ago.

“You went through hell,” he told her.

Robert A. Bertsche is an attorney and chair of media law practice at Prince Lobel Tye LLP. Copyright © 2013 by Robert A. Bertsche, Prince Lobel Tye LLP. This work is made available under the terms of the Creative Commons Attribution-ShareAlike 3.0 license.

28 years later, still thinking about a shield law

With Congress once again wrestling with proposals to create a federal shield law (see this by Josh Stearns), I thought I’d try to dig up an essay I wrote for the trade magazine Editor & Publisher in 1985 — my first published piece of media commentary. It took me a few weeks, but with an assist from a helpful research librarian at Northeastern, I tracked it down.

I read it with my hands over my eyes, but it holds up better than I had expected. Essentially, I believe today what I believed then — that the First Amendment is for everyone, and that professional journalists deserve no greater protections under the Constitution than does the average citizen.

The only real difference is that, currently, I support efforts to try to carve out some limited shield protections for clearly defined acts of journalism, whether those acts are carried out by “the large metropolitan publisher who utilizes the latest photocomposition methods,” as Justice Byron White put it in Branzburg v. Hayes, or by an unpaid amateur blogger.

SHOP TALK AT THIRTY
Reporters and the shield law — a differing viewpoint

Editor & Publisher, Sept. 28, 1985

By Daniel D. Kennedy

Screen Shot 2013-09-23 at 7.27.12 AMEvery few years a group of self-appointed leaders of the industry in which I work takes it upon itself to assert that news reporters have or should have rights that go far beyond those of the average citizen.

I suppose I should be grateful. I’m not.

Earlier this year the Massachusetts legislature wisely defeated a shield law proposed by a panel of journalists. The law would have given reporters the right to impede criminal investigations by refusing to identify their anonymous sources before grand juries.

The legislators showed courage — a trait that is usually in short supply in Massachusetts politics. The vote came just days after a popular television reporter barely escaped going to prison. She got off the hook when her confidential source agreed to speak with law-enforcement officials. [Note: I was referring to Susan Wornick, who this summer announced her retirement from WCVB-TV, Channel 5.]

The problem with a shield law is this: For journalists to be granted such a protection, an uncomfortable distinction must first be made between us and the rest of the American people. And the government, by necessity, would be the institution making that distinction.

Freedom of the press, as defined by the First Amendment, is a right granted to everyone. News organizations and their employees are protected no more and no less than the citizen who writes a letter of protest, circulates a petition or holds a sign at a demonstration.

When officials investigating a crime believe someone has information they need, they may compel him to tell a grand jury what he knows. The U.S. Supreme Court has clearly stated that professional journalists have no special privileges that would exempt them from this responsibility.

Those who advocate a shield law are tacitly admitting that reporters who withhold names from grand juries are breaking the law.

Other, more extreme press advocates assert that a shield law is not needed because the First Amendment already guarantees reporters the right to protect their sources.

But the First Amendment says only that “Congress shall make no law … abridging the freedom of speech, or of the press.”

All that means is that a newspaper or magazine publisher may print what he chooses. It would be difficult to read into the simple language of the First Amendment a clause that says obstruction of justice is legal when done by a reporter.

The Supreme Court, in Branzburg v. Hayes (1972), ruled that the First Amendment does not grant to journalists the right to keep their sources anonymous. The court had this to say about the consequences of a shield privilege:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of 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.

A shield privilege, in other words, would lead to government regulation of the news business. Government officials would determine who is a reporter and who is not. The press would be made less free in the name of increased freedom.

The Supreme Court added in Branzburg that state legislatures are free to pass shield laws, and several have. But I think such laws are a mistake, and that legislators in Massachusetts acted properly.

At a time when the press is accused of elitism and arrogance, shield laws are another wall between us and the public whom we are trying to serve.

My views, I’ll admit, are not popular with my colleagues, most of whom favor a shield law. The concern they raise is that, without protection, they will not be able to do what is a normal part of their job. They fear their sources will dry up if they can’t keep them anonymous.

But shield protection has nothing to do with the way journalists usually work. Reporters can and do promise anonymity to some of their sources. The information these people provide — whether it is about an impending lawsuit or hazardous fill at a housing development — may be true or false. But in all cases their names may be protected.

Refusing to reveal the name of someone whom investigators need to question as part of a criminal case is another matter.

I would argue that a reporter should not promise anonymity to such a source and that he should cut short the interview if agreement cannot be reached.

But, while that may be a good guide for most situations, it is impossible to make a rule that would cover all cases. Occasionally a reporter may have to have a piece of information and need to make a pledge of anonymity to get it.

A number of reporters have paid the price, serving short stretches in jail on contempt-of-court charges for refusing to name names.

There is no easy solution to cases such as these.

As one who has never been in jail and would be less than enthusiastic at the prospect, I hesitate to make this suggestion. But perhaps jail is the price reporters occasionally have to pay as a cost of doing business.

I would contend that jail is a better alternative than asserting a right that is not granted to persons who are not employed by news organizations.

Freedom of the press is a right to be enjoyed by all. It is too precious to split into one set of privileges reserved for those of us who work in the news business and other, lesser set for modern Tom Paines working in their basements, alone and unheralded.

Kennedy is senior news editor of The Daily Times Chronicle of Woburn, Mass.

John Sununu’s muddled shield-law soliloquy

Good luck making sense of John Sununu’s column in today’s Boston Globe about efforts to enact a federal shield law, which would allow journalists greater leeway in protecting their sources.

First he asserts that “our Constitution’s First Amendment already offers the press unequivocal protection,” seeming to position himself as an absolutist on the matter. He does not mention what he plans to do about Branzburg v. Hayes, the 1972 Supreme Court ruling that the First Amendment does not, in fact, include a shield privilege.

Ah, but no so fast. Farther down, Sununu pulls a switcheroo and argues that a shield law might encourage irresponsible journalism:

By protecting and encouraging the use of anonymous sources, the law may encourage a cavalier approach to checking multiple sources or leaking sensitive information. It could also provide unwarranted protection to government or private-sector workers using anonymous leaks to undermine their supervisors.

So which is it? We don’t need a shield law because the First Amendment already allows journalists to protect their sources? Or we don’t need a shield law because journalists shouldn’t be allowed to protect their sources?

It’s pretty hard to agree or disagree with a columnist when you can’t figure out what he’s trying to say — or, as I suspect is the case here, when he has no idea what he’s writing about. Just a mess.

Branzburg v. Hayes v. The New York Times

You may not like a federal appeals court’s decision that New York Times reporter James Risen must testify in a CIA leak case. I don’t. But it’s Branzburg v. Hayes, straight up. It’s unimaginable that this would have gone the other way.

And keep in mind that even if we had a federal shield law, there would almost certainly be a national-security exception wide enough to drive a truckload of subpoenas through.

Targeting of the AP is neither new nor illegal. Just outrageous.

AP logoA lot of outrage has been generated over the Department of Justice’s secret subpoena of the Associated Press’ phone records, and I share that outrage.

But what the DOJ did was not new and not illegal — it was, rather, the latest example of overreach by an administration that has demonstrated its contempt for the role of a free press in a democratic society. Which, of course, makes the Obama White House no different from (though more zealous than) most of its predecessors.

Erik Wemple of The Washington Post explains by dredging up a similar, if less sweeping, case from years past, and in the process does a good job of showing why it matters. If the press can’t promise sources anonymity, it can’t perform its role as a check on government.

An editorial in The New York Times endorses a long-stalled federal shield law that would provide journalists with greater protections than they now have with regard to protecting confidential sources — a move that President Obama is now pushing for.

But what does Obama care? As the Times points out, such a law probably would have made no difference in the AP scandal, since all the DOJ would have had to do was invoke one of the exceptions built into the bill.

The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way. A century’s worth of rulings by the U.S. Supreme Court holds that though the media have an enormous amount of protection under the First Amendment to publish or broadcast, they have no more rights than ordinary citizens when it comes to newsgathering.

Here is the Supreme Court in Branzburg v. Hayes (1972) explaining why it would be impossible to created a protected class of journalists who would enjoy an absolute right to protect their sources:

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.

The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.

Update: McGrory won’t have to reveal source

Boston Globe columnist Brian McGrory will not be ordered to reveal the identity of a source who told him about a secret sidebar conference involving two jurors in the murder trial of Dwayne Moore.

Moore was the principal suspect in a horrific 2010 multiple murder in Mattapan. His case ended in a mistrial earlier this year, and prosecutors are seeking to bring charges again. Moore’s lawyer had accused the prosecution of leaking the information to McGrory in an attempt to poison the jury pool. But Superior Court Judge Jeffrey Locke disagree, according to the Globe’s Peter Schworm.

“I don’t see anything in the column that differentiates it from all the other news stories,” Locke was quoted as saying.

Here is my earlier, more detailed post.