Federal Shield Law Research Articles

The Press, National Security, and Civil Discourse

The Constitution expressly provides protection for the freedom of the press. Yet there is one area in which the press is not so free: the freedom to refuse disclosing confidential sources when subpoenaed by the federal government. Currently, there is no federal reporter’s privilege. The Supreme Court has held the First Amendment provides no such protection, and repeated congressional attempts to codify a reporter’s privilege in a federal shield law have failed. Arguments against a shield law include national security concerns and the struggle to precisely define “journalist.” Such concerns were evident in the most recently proposed shield law, the Free Flow of Information Act of 2017. This Comment advocates in favor of passing a federal shield law. Specifically, this Comment analyzes the Free Flow of Information Act of 2017 against the backdrop of a post-9/11 America where “fake news” runs rampant. Though far from perfect, the proposed law was a step toward balancing national security concerns with press freedom. Legislators can and should strike an effective balance between these two tensions by accurately defining terms like “national security” and “properly classified” to prevent government overreach. Finally, this Comment argues that a federal shield law is necessary to combat the recent national security concerns raised by “fake news” and thereby reaffirm media credibility.

Book Review: A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism, by Dean C. Smith

Dean C. Smith A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism. El Paso, TX: LFB Scholarly Publishing LLC, 2013. 297 pp.In June 2014, the push for a federal shield law to protect journalists and their confidential sources was reignited once again. The catalyst was the Supreme Court's refusal to hear an appeal from James Risen who has been subpoenaed to testify for the government in the prosecution of a former CIA officer accused of leaking classified information. Following the decision to not hear the appeal, a variety of media organizations urged the U.S. Senate to schedule a vote on a proposed federal shield law that would offer journalists like Risen protection from unreasonable subpoenas.Despite this push for a federal statute, much of the rhetoric surrounding the reporter's privilege is focused on the First Amendment and the Supreme Court's 1972 decision in v. Hayes, in which the Court failed to find any such privilege in the constitution. Yet much of the law in this area is comprised of state statutes. Dean Smith, professor of communications at High Point University, reconciles this seeming disconnect by adopting and testing theories that focus on the participation of nonjudicial actors in the of constitutional interpretation.The first theory Smith explains in his introductory chapter is democratic constitutionalism, as conceived by Robert C. Post and Reva B. Siegel. Smith notes that in this theory, controversy, such as the decision, encourages debate and change through the legislative process. Smith also draws on Micheal Gerhardt's work on nonjudicial precedents, which serve vital roles in the development of law. Applying what he later terms the Post-Siegel-Gerhardt model, Smith explains that as states adopt shield laws, they are contributing the understanding of the Press Clause; shield laws, using Gerhardt's terminology, are not only messages to the courts but also fill gaps in common law and constitutional law (p. 14).In an exemplary use of legal and historical research, Smith also works to fill gaps in the long-told story of reporter's privilege. More importantly, Smith weaves this story in a new way, extending the conversation beyond the seminal Supreme Court case that tends to be the focus of this issue: Branzburg was neither the beginning nor the end (p. 15). Instead, applying Gerhardt's theory, Smith reinterprets the Court's opinion in as inviting non-judicial actors to participate in the interpretive process (p. 232). Taken in this light, Smith seems to hope that statutory shield laws might look less like inferior substitutes for a Court-articulated right and more like important pieces in a larger infrastructure that, taken as a whole, creates what we popularly think of as freedom of the press (p. 15).The seven chapters of the book each chronicle a major stage in the development of that infrastructure, from the passage of the nation's first shield law to the 1972 Supreme Court case, v. Hayes, to the current state of shield laws and constitutional privilege. …

Book Review: Law and Ethics for Today’s Journalist: A Concise Guide, by Joe Mathewson

Joe Mathewson Law and Ethics for Today's Journalist: A Concise Guide. Armonk: M.E. Sharpe, 2014. 198 pp.In the preface Law and Ethics for Today's Journalist, the author states that the book's purpose is to help the working journalist recognize legal and ethical issues and provide guidance in making those decisions (p. xi). This is a short book, only 198 pages, and is not designed be a comprehensive study of journalism law or of jour- nalism ethics. Rather, the author directs this text the working journalist and as a supplemental book for use in college-level journalism courses.Joe Mathewson draws on his experience as the former Supreme Court reporter for the Wall Street Journal fashion a very general overview of most of the traditional legal issues and concerns facing journalists today. As might be expected from one with Mathewson's credentials, his writing is clear, concise, and compelling. The author breaks very little new ground, but visits the cases and situations that make up the foun- dation of issues such as prior restraint, defamation, invasion of privacy, free press/fair trial, journalist's privilege, copyright, and access information. He purposely limits material pertaining broadcast regulation and obscenity. The former is omitted because it has little effect on the practice of journalism, and the latter because it has no First Amendment protection (p. xii).Also included is a chapter on the Citizens United1 case. The rationale behind includ- ing material about the Supreme Court ruling that gives corporations the same First Amendment rights as individuals is as follows: . . . in these days of big-money elec- tions, the huge political donations and expenditures can make good stories in and of themselves (p. 191). The author also suggests that following the campaign finance trail can help the practicing journalist connect the dots between money spent by inter- est groups and the actual vote.Missing from this book is any reference WikiLeaks and how the existence of this organization has affected journalism. There are at least two chapters that would be stron- ger if material on WikiLeaks were included. Chapter 3 discusses prior restraint, the Pentagon Papers, and the role of Daniel Ellsberg in obtaining these documents. It seems that this material would flow naturally into a discussion of WikiLeaks, Bradley Manning, and the Obama administration's reaction the publication of this information.2The WikiLeaks case also had an impact on the federal shield law debate, especially in determining who is a journalist and who would be covered under such a law. …

The Real Story Behind the Nation's First Shield Law: Maryland, 1894–1897

Blame it on H.L. Mencken. His unsupported account of how Maryland adopted the nation's first shield law in 1896 has been repeated in books and articles for seventy-five years, but it was a fabrication based on shoddy reporting. This article will show the law was not prompted, as Mencken claimed, by the jailing of Baltimore Sun reporter John T. Morris but by the criminal indictments of reporters John S. Shriver and Elisha J. Edwards in 1894. Passage of the law was not connected to local events but was sparked by a scandal unfolding in Washington. The drive for a shield law was not isolated to Maryland but was part of a national lobbying campaign that included talk of a federal shield law. Finally, that campaign did not emanate from The Baltimore Sun but from The Baltimore American.

Book Review: Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, by James C. Goodale

Fighting for the Press: The Inside Story of the and Other Battles. James C. Goodale. New York: CUNY Journalism Press, 2013. 260 pp. $20 pbk.Reviewed by: Roy S. Gutterman, Syracuse University, NY, USA DOI: 10.1177/1077699013506342The day before James C. Goodale began his book tour with a luncheon at the Committee to Protect Journalists in New York City, news broke that the Department of Justice had secretly subpoenaed telephone records of the Associated Press. This news was the first in a summer of breaking news of secret government surveillance programs and gov- ernmental efforts targeting leakers and directly and indirectly the media.The onslaught of government prosecutions of leakers, the continued controversy of Wikileaks, and the explosion of the National Security Agency (NSA) surveillance scandal and the Edward Snowden saga propelled Goodale's memoir, Fighting for the Press, to not only instantly relevant but also prescient.While the bulk of the book examines Goodale's role as an in-house lawyer at The New York Times during the Pentagon Papers litigation, he devotes two complete chapters to the Obama administration's hardline approach to dealing with leaks and leakers of the nation's security secrets. He also criticized the administration's War Against the Press.Goodale recites how as a candidate Obama was critical of Bush's dealings with the press and he advocated for the federal shield law. However, as president, Goodale believes Obama is worse than Bush in using criminal laws to plug leaks and asking reporters to disclose confidential sources. He concludes that the Obama administration may be even more malevolent toward press rights than the Nixon administration.Thus, the book comes full circle from Goodale's early days as a young general counsel at The New York Times to the birth of what is commonly known as the Amendment bar. In legal circles, Goodale is widely considered the dean of the First Amendment bar and one of its primary founders.Overall, Fighting for the Press is Goodale's contribution to the library of books on the Papers, and the historic fight over censorship, national security, and the First Amendment. There is no shortage of books and memoirs on the topic-David Rudenstine's The Day the Presses Stopped, Floyd Abrams's Speaking Freely, and, of course, the author and leaker Daniel Ellsberg's two books on the topic, Secrets and on the War.Goodale adds to the library by telling the story behind The New York Times' decision to take on the Nixon administration, standing firmly behind the First Amendment. The case, the United States v. New York Times, marked its fortieth anniversary in 2011, and is an important element of practically any First Amendment law course.How it got there is Goodale's story. Supported by his own encyclopedic legal knowledge and law that he helped develop, Goodale paints a picture using case law, transcripts of hearings, memos, and decades of files that only an insider could employ. …

Reporter’s Privilege in the Era of the Internet

Journalists’ right to use confidential information and anonymous sources is considered to be one of the cornerstones of press freedom and democracy. The aim of reporter’s privilege (or “shield law”) – a reporter’s protection from being compelled to testify about confidential information or sources – is to safeguard the public’s right to know by protecting the rights of journalists and their use of confidential sources. In the era of traditional media (print, television, radio) it was relatively easy to define who is the “reporter” in reporter’s privilege, i.e. who and which media belong to the realm of shield laws. The internet, however, have challenged the traditional conceptions and apparently caused confusion among legislators and judiciary in different countries. It is not at all clear anymore who is a journalist and who or what should be protected by the reporter’s privilege. The research question of our case study is: How is the scope of the reporter’s privilege defined in the legislations six countries? In other words, who are the subjects of reporter’s privilege and who or what are protected by reporter’s privilege? We build a heuristic model (continuum) of these definitions. In one end of the continuum reporter’s privilege is technology neutral and applies to anyone providing a message in public (as in Finland). In the other end of the continuum reporter’s privilege is restricted only to the professional journalists (as in Germany or in the federal shield law bill reintroduced in U.S Congress in Sept. 2011). We call the former a universal right and the latter a guild privilege. Most countries seem to stand between these two extremes. Reporter’s privilege as a universal right acknowledges the internet as an equal medium with traditional media and the citizen journalists or even bloggers (as in Finland and Australia) as equal actors with professional journalists. The conception of guild privilege reflects either an outdated, pre internet legislation, or a deliberate aim to restrict the privilege to the professionals even in the era of citizen journalism. Our claim is that theoretically the former reflects the ideals of public sphere by Jurgen Habermas in which individuals congregate to discuss matters of mutual interest, while the latter is a continuation of libertarian theory of the press emphasizing the role of the news media as an institution. We compare in our paper the differences between the conceptions of “reporter” in both ends of the continuum (Finland, Germany) and in representative countries between these extremes (Australia, Germany, Norway and Sweden as well as the bill proposed in the U.S). We also conduct a qualitative text analysis about how divergent legal outcomes concerning the domain of the reporter’s privilege have been argued in the academic and professional discussions. Empirical data of our paper consists of legislation (and a bill proposal in the case of the U.S) of the reporter’s privilege in the countries mentioned, and selected texts of academic and professional journals. We consider international comparison of the reporter’s privilege important because many countries are either planning or revising shield laws in a moment (for example Netherlands, Norway, the U.S). The role of the internet and citizen journalism is a major concern in these undertakings.

Challenging Civil Contempt: The Limits of Judicial Power in Cases Involving Journalists

Despite their assertion of a First Amendment or common law reporter's privilege in federal courts, journalists continue to face jail sentences and exorbitant fines for refusing to divulge their confidential sources when subpoenaed. Efforts to pass even a limited federal shield law have failed so far. This article offers another avenue to protect journalists—examining the roots of contempt law and policy to highlight limits on the contempt power of judges. It argues that because journalists are part of a group resting on steadfast moral and professional convictions, they may validly argue that confinement and excessive fines are improper sanctions. The article also suggests refinements in shield law proposals and other legislation to clarify the extent of judicial contempt power.

What They Meant to Say: The Courts Try to Explain Branzburg v. Hayes

Part I: Introduction For close to forty years, fate of journalists wishing to conceal identities of confidential sources from government bodies with subpoena power has depended upon how one heavily divided United States Supreme Court opinion is interpreted. The Court's 5-4 decision in Branzburg v. Hayes1 in 1972 represents its last word - so far2 - on whether journalists have a constitutional right under First Amendment press clause3 to refuse to identify sources of information to grand juries, prosecutors, criminal defendants, civil litigants, legislators, and others. With prospects for a federal journalist's shield law still uncertain at this writing,4 journalists may continue to rely on interpretations of Branzburg for protection for some time. Because Branzburg decision was closely divided, lower court interpretations have focused on a brief concurring opinion by Justice Lewis Powell.5 The Powell concurrence is not necessarily a ringing endorsement of majority opinion, but it also stops short of endorsing either dissent. Lower federal courts and some state courts have resolved resulting confusion through ad hoc decision-making, while other states have created shield statutes that protect journalists to varying degrees. But recently in federal courts, journalists' protection, already uncertain, has been thrown into further disarray by a parade of negative decisions.0 The parade began with a strongly worded United States Court of Appeals decision in 2003 criticizing thirty years of federal appellate precedent that provided limited protection to journalists and sources.7 The Seventh Circuit's 2003 opinion accused other federal courts of badly misreading Branzburg, which three-judge panel said provided no support for any type of constitutional privilege.8 The Seventh Circuit's McKevitt opinion indicated that more than thirty years after Branzburg was decided, lower courts still were unsure what it meant. Although passage of a federal shield law would help clarify journalists' right to conceal confidential sources, it would still leave unresolved two other issues that are associated with Branzburg - extent to which press newsgathering activities are protected by First Amendment and reach of generally applicable laws into newsgathering and publication. Because Branzburg still matters to media, this article will attempt to make sense of it by using a comprehensive approach. All Supreme Court opinions that have cited Branzburg in First Amendment contexts will be examined, as well as a few non-media cases in which Court discussed Branzburg at some length. Also, article will briefly examine federal and state appellate court cases and federal trial court opinions that discussed Branzburg's meaning to some extent. The goal is to gain a complete picture of how this pivotal case in First Amendment law has affected press rights. Part II: Origins of Case The cases consolidated in Branzburg v. Hayes had origins in many years of journalistic practice, centuries of Anglo-American legal tradition, and turbulent 1960s. sl Before examining backgrounds of specific cases, it would be helpful to briefly sketch larger issues at stake. THE PROBLEM OF PRIVILEGE It has long been a maxim of English and American law that privileges excusing people from providing in court are disfavored because they hamper search for truth. Famously, during a debate on whether privileges to excuse witnesses should be curtailed, Lord Hardwicke in 1742 said on floor of Parliament that the public has a right to every man's evidence in courts of law.10 That phrase has survived to this day as a description of Anglo-American law's attitude toward privileges.11 Nevertheless, it also is widely accepted in law that some relationships between persons are irreparably damaged if one party cannot rely on promises of confidentiality from other. …

A Shield for Whom? First Amendment Implications of a Federal Shield Law

In May of 2007, the U.S. Congress introduced the Free Flow of Information Act, reigniting the legislative push toward a federal shield law. Though the journalism industry has widely embraced prospects for the law, such legislation would likely create a tiered system of protection among First Amendment practitioners.
 
 Back in 2005, during an undergraduate internship as a beat reporter for The Kansas City Star, I recall receiving a mass e-mail from a senior editor. The memo encouraged all employees of the paper, which is read daily by about 700,000 people, to contribute to a legal defence fund dedicated toward the creation of a federal shield law. Without probing the pros and cons of what such legislation would mean not only to the newspaper establishment, but also to society in general, the message challenged fellow employees to meet or surpass the editor’s $100 contribution. 
 
 That message troubled me, and it should trouble us all. Last year, the U.S. Congress considered two versions of a bill to create a federal shield law protecting journalists from being subpoenaed and potentially jailed for refusal to disclose anonymous sources. Congressmen marked the move toward reintroducing the legislation in 2007 by cajoling hundreds of delegates at the American Society of Newspaper Editors conference to 'use their pages in support of the upcoming federal shield law bill' (Strupp 2007). Indeed, such commentary has recently been published by The New York Times (2007), among numerous other outlets. And in early May of 2007, the Senate and the House of Representatives simultaneously introduced the Free Flow of Information Act, reigniting the legislative push toward a federal shield law. This paper avoids analysing that specific proposal, as this occasion marks not the first time Congress has considered this topic and likely not the last. Rather, the thrust examines conceptual implications derivable from a federal shield law, implications not ordinarily discussed by the news media industry. Frighteningly, such legislation would likely create a tiered system of protection among First Amendment practitioners  an urgent warning explained throughout this paper.

Analyzing Federal Shield Law Proposals: What Congress Can Learn from the States

After several high-profile cases in which journalists faced jail or fines for failing to reveal confidential sources to investigators, two senators and a representative filed bills in Congress in 2005 that would create a federal shield law for journalists. The proposals were similar but differed in how they would define protected persons, protect confidential sources, and whether they would protect journalists from subpoenas to third parties, such as phone and Internet service companies. A comparison of the proposed laws to state shield laws finds that the bills avoid many of the pitfalls that have led to interpretations of state laws that were adverse to journalists. The best situation for journalists might be a federal shield law that combines elements of all the proposed bills, plus some additions to clarify who is protected.

Building One's Own Gallows: The Trade Publications' Reaction To A Federal Shield Law, 1972–1974

Building One's Own Gallows: The Trade Publications' Reaction To A Federal Shield Law, 1972–1974

Separating the Press and the Public

This article analyzes testimony before four Congressional subcommittees, between 1972 and 1975, on a proposed federal shield law. it is argued that within the testimony the press articulates a public, professional mission, but it fails to clearly define who qualifies for protection as a journalist. Following Jurgen Habermas's idea of communicative ethics, it is suggested that the testimony reveals how closely journalism is tied to the public sphere, but also how questions of journalistic practice are raised outside of that public sphere.