Tag: Jonathan Albano

Globe journalist forced to testify despite First Amendment concerns

Moakley Federal Courthouse in Boston. Photo (cc) 2017 by Beyond My Ken.

A Boston Globe journalist was forced to testify Tuesday in U.S. District Court in a case involving the Harvard admissions scandal. According to the Globe’s Shelley Murphy, politics editor Joshua Miller briefly took the witness stand and attested to the accuracy of quotes in an April 2019 article for which he interviewed the defendant, Jie “Jack” Zhao. Zhao has been charged with purchasing a Needham home at an inflated price owned by then-Harvard fencing coach Peter Brand so that Zhao’s two sons would be admitted to Harvard.

Miller’s compelled participation raises troubling First Amendment issues. Miller testified after a federal judge ruled against his motion to quash a subpoena. That’s not especially surprising. When faced with the prospect of requiring a journalist to testify, judges usually are more likely to rule against the journalist in a criminal case rather than in a civil matter, and they are more likely to rule against the journalist if they are not being ordered to reveal a confidential source. In this case, prosecutors merely sought Miller’s testimony so that they could enter his article into the record.

Nevertheless, the Globe’s lawyer, Jonathan Albano, cited in his motion to quash “the widespread recognition that the First Amendment protects journalists from the needless disclosure of sources, investigative techniques, and both confidential and non-confidential work product.”

Miller’s case also was the subject of a “friend of the court” brief filed by the Reporters Committee for Freedom of the Press, joined by 40 other media and legal organizations including the Center for Investigative Reporting, the Committee to Protect Journalists, Dow Jones, the First Amendment Coalition, the Freedom of the Press Foundation, Gannett, the Massachusetts Newspaper Publishers Association, McClatchy, MediaNews Group, the New England First Amendment Coalition, the New England Newspaper and Press Association, the NewsGuild, The New York Times, the Society of Professional Journalists, Tribune Publishing and others.

The Reporters Committee brief was submitted by First Amendment lawyer Robert Bertsche of the Boston firm Klaris Law. Perhaps the most notable aspect of his brief is that he observes the subpoena was not limited to asking that Miller attest to the accuracy of his article but, rather, was “open-ended.” In other words, if Miller was on the witness stand and was unexpectedly asked about confidential sources or reporting methods, he would either have to answer or refuse and thereby risk being held in contempt of court. Bertsche wrote:

Compelling reporters to testify about their communications with sources — even on-the-record, nonconfidential conversations — harms the newsgathering and reporting process, to the ultimate detriment of the public. It embroils reporters in time-consuming litigation and diverts news organizations’ already scarce resources away from newsgathering and reporting — burdens that weigh especially heavily on journalists who regularly investigate and report on matters that could involve potential criminal activity, and thus whose interviews and other work product could regularly be the target of federal prosecutors. Moreover, enforcement of subpoenas like the one at issue here threatens to erode public trust in the independence of the news media by creating the misimpression that journalists are an investigative arm of prosecutors and courts. That risk is particularly acute in situations where, as here, a journalist’s testimony is sought in connection with a criminal investigation launched after publication of the relevant reporting. Simply put, enforcement of government subpoenas that seek to compel journalists like Mr. Miller to testify in criminal trials risks making reporters’ existing and potential sources—both confidential and non-confidential — more reluctant to speak candidly, or simply unwilling to speak at all.

As I noted recently, Miller was subpoenaed not long after U.S. Attorney General Merrick Garland was hailed for announcing that reporters would no longer be compelled to testify in leak cases involving national security. This may be a matter of apples and oranges, but it’s notable that the stakes involved in demanding Miller’s testimony are considerably lower than the standard that Garland articulated. Yet that didn’t stop a judge from dragging a journalist into court.

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.