shield law – Page 2 – Media Nation

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

Every 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.

A 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.

A possible collision course over a confidential source

Boston Globe columnist Brian McGrory, who wrote about a secret sidebar conference with two jurors over the recent mistrial involving the Mattapan killings, may be hauled into court and ordered to reveal the identity of a confidential source.

Boston Herald reporter Matt Stout reported on April 3 that John Amabile, the defense lawyer for murder suspect Dwayne Moore, was demanding to know who had leaked information to McGrory about the lone juror whose refusal to convict Moore led to a mistrial. Four people died in the shootings, including a 2-year-old boy.

(Update: The Globe’s Maria Cramer also covered Amabile’s complaint on April 3.)

If the prosecution had leaked to McGrory in defiance of an order by the trial judge, Christine McEvoy, Amabile told the Herald, he might seek to have the charges against his client dismissed.

McGrory, not surprisingly, declined to talk about the matter in any detail when the Herald contacted him, saying, “Obviously I quoted someone in the column on a grant of anonymity, and I hope you would understand that.” And McGrory told his own paper, “Because the information was provided to me under the condition of confidentiality, I obviously can’t reveal the nature of the source.”

The parties were back in court on Tuesday. Cramer reports that Amabile told Suffolk Superior Court Judge Jeffrey Locke, who’s looking into Amabile’s complaint, that he might subpoena McGrory or prosecutor Edmond Zabin. Cramer writes that “Locke urged him not to do so without seeking the court’s permission.”

And the Herald’s Laurel Sweet, who also reported on the Tuesday hearing, quotes Locke as telling Amabile, “I’m not taking any remedies off the table.”

The inquiry will resume on May 8. If McGrory is asked to attend, it sounds like he’d be well advised to bring a toothbrush.

McGrory would have little to worry about if Massachusetts were not one of 10 states lacking a shield law giving journalists the right to protect their confidential sources. Last month, a legislative committee heard a proposal to create such a law, a broadly defined measure that would appear to protect anyone engaged in journalistic activities, including bloggers and citizen journalists.

The McGrory situation shows why a shield law could be beneficial. Whoever leaked to him was confident that the Globe would not reveal his identity. It is clearly in the public interest to get as many details about the Mattapan case out into the open as possible.

If Amabile’s complaint somehow leads to the source’s identity being revealed, that would have a chilling effect on the next insider who’s tempted to pick up the phone and call a reporter.

Note: This post has been corrected and updated.

Proposed Mass. shield law appears to protect bloggers

The Massachusetts Legislature this week will consider, once again, whether journalists should be protected from subpoenas ordering them to give up their confidential sources or turn over unused notes, video footage and the like.

According to Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, the bill, called the “Free Flow of Information Act,” will be the subject of a public hearing before the Joint Committee on the Judiciary on Tuesday at 1 p.m. The bill is being sponsored by state Rep. Alice Hanlon Peisch, D-Wellesley.

In an era defined by blogging, social media and citizen journalism, one of the key questions that comes up whenever shield laws are discussed is who should be covered. Many of us argue that it’s journalism, not journalists, that should be protected, and that if a lone blogger is able to convince a judge that she’s engaged in bona fide journalism, then she should be covered just as fully as someone who’s on staff at the Boston Globe.

Fortunately, the bill being considered this week appears to allow for exactly that. I’ve asked Ambrogi for clarification (he has since weighed in, below), but what I’m looking at is the definition of “news media,” which is described in the bill as follows (my emphasis):

[A]ny newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.

The bill specifies very strict protection for anonymous sources and less strict protection for unused notes, footage and other materials accumulated in the course of newsgathering but not actually used. That’s in accord with longstanding legal tradition, so no surprise there. There’s an exception “to prevent imminent and actual harm to public security from acts of terrorism” as well.

Ambrogi reports that Massachusetts is now just one of 10 states that does not have a shield law. But the state’s Supreme Judicial Court has recognized a limited right for reporters to protect their sources. In fact, the only state with no shield protection whatsoever is Wyoming.

By far the most significant gap is the lack of a federal shield law, compounded by the U.S. Supreme Court’s 1972 ruling in Branzburg v. Hayes that journalists do not have a constitutional right to protect their sources. That gap has been exploited by federal authorities in states where journalists would otherwise have shield protection — such as the cases of Jim Taricani in Rhode Island and Josh Wolf in California.

The bill being considered this week has come up before, and I don’t know whether there’s any more reason to think it will pass now than it has in previous years. Personally, I’m lukewarm on shield laws, since they can give an already-skeptical public reason to believe that the media are a privileged class.

But the Massachusetts bill appears to be carefully drafted, and would do no more than level the playing field with respect to most other states.

Instant update: I just heard from Ambrogi, who confirms that the bill would give citizen journalists a chance to argue that they should be entitled to shield-law protections as well — although he cautions that the word “business” might mean they have to be “at least trying to derive some income from the citizen journalism.”

Appeal filed in bloggers-aren’t-journalists case

Lawyer-blogger Eugene Volokh has filed an appeal in the matter of the Montana blogger who lost a $2.5 million libel case after a federal judge ruled she was not entitled to the legal protections enjoyed by journalists.

“The motion for new trial,” Volokh writes, “argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media.”

I wrote about the case last month for the Huffington Post. In a nutshell, U.S. District Judge Marco Hernandez ruled that Crystal Cox, a self-described “investigative blogger,” could not be considered a journalist under Oregon law, where she was sued. Hernandez wrote that he reached that conclusion because Cox did not work for a newspaper or broadcast outlet, and because she lacked training and failed to demonstrate professional standards.

Hernandez’s ruling had two effects. First, Cox could not invoke Oregon’s shield law to protect her source or sources, whose identity was sought by the plaintiffs, a financial-services company and one of its executives. That ruling was actually of little account, since even established media organizations can’t invoke shield laws to defend themselves against libel suits.

Of far more importance was Hernandez’s ruling that the plaintiffs would not have to prove Cox had acted negligently — only that what she had published was false and defamatory. In the 1974 case of Gertz v. Robert Welch, the U.S. Supreme Court ruled that libel plaintiffs must prove the defendant acted with some degree of fault, with negligence as the lowest standard the states could require. But, seizing on an ambiguity in the wording, Hernandez claimed the Gertz protection only applies to professional journalists.

Volokh, by contrast, argues that the U.S. Supreme Court has made it clear for many decades that journalists do not enjoy any special protections under the First Amendment — meaning that any rulings the court has made about the press apply to everyone, not just to those carrying a press pass from a newspaper or television station. (Which was the main thrust of my Huffington Post commentary.) According to the brief, filed by Volokh and Benjamin Souede:

[W]hile the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights.

As several people who’ve looked at this case have reported, most notably David Carr of the New York Times, there is ample evidence that Crystal Cox’s conduct was reprehensible, and that the plaintiffs — Obsidian Financial Group and one of its executives, Kevin Padrick — might easily have won their libel case even if they had been required to meet the Gertz negligence standard.

What makes this case important is not Cox, but rather the principle that all of us — not just professional journalists — should be able to speak and write freely without inadvertently running afoul of libel laws.

More on the journalists-aren’t-bloggers ruling

The redoubtable David Carr has an interesting column in today’s New York Times in which he reports that “investigative blogger” Crystal Cox’s conduct was considerably beyond the pale of what anyone would consider journalism. (My Huffington Post commentary on the case is here.)

But if her behavior was that egregious, then the plaintiffs should have had no problem convincing a jury that she acted negligently (or worse). The negligence standard is a vital constitutional protection regardless of whether those benefitting from it are sympathetic figures.

In order to prove libel, a plaintiff must show that information published or broadcast about him was false and defamatory. Starting with the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court began to require a third element as well: fault. The regime that’s in effect today was solidified by the 1974 case of Gertz v. Robert Welch. Here’s what the courts mean by “fault”:

A public official or public figure must show that what was published or broadcast about him was done so with knowing falsity, or with “reckless disregard” of whether it was true or false.
A private figure must show that the defendant acted negligently when it published or broadcast false, defamatory information about the plaintiff.

U.S. District Judge Marco Hernandez, in his pretrial ruling, obliterated the fault requirement for any defendant except those he deems to be journalists, ignoring the Supreme Court’s longstanding position that the First Amendment applies equally to all of us — for the “lonely pamphleteer” as much as for major newspaper publishers, as Justice Byron White put it in Branzburg v. Hayes (1972).

Hernandez’s contention that journalists enjoy greater free-speech protections than non-journalists is an outrage, and should not be allowed to stand.

Making sense of that journalists-aren’t-bloggers ruling

In my latest for the Huffington Post, I take a look at that bloggers-aren’t-journalists ruling in Oregon. And I argue that the case has nothing to do with the shield law, and everything to do with the dangerous cultural schism between journalists and the rest of society — and a judge who wants to widen it.