Constitutional Law
Oct. 26, 2006
Congress Should Adopt Immediately a Federal Shield Law for Journalists
FORUM COLUMN - By Erwin Chemerinsky - The outrage of putting two reporters in jail for 18 months for keeping their sources confidential should finally provoke Congress into adopting a law protecting reporters who keep their sources confidential.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
The outrage of putting two reporters in jail for 18 months for keeping their sources confidential should finally provoke Congress into adopting a law protecting reporters who keep their sources confidential. In September, a federal judge in San Francisco sentenced reporters Lance Williams and Mark Fainaru-Wade to jail for refusing to disclose who leaked to them secret grand jury testimony concerning the investigation of steroid abuse and the Bay Area Laboratory Cooperative.
Williams and Fainaru-Wade are the San Francisco Chronicle reporters who wrote the book "Game of Shadows," which exposed steroid use by baseball star Barry Bonds and other top athletes. Putting these reporters in jail serves no purpose other than to chill investigative reporting that informs the public on important social and political issues.
Reporters often need to rely on confidential sources. Perhaps most famously, the Watergate scandal never would have been uncovered except for Washington Post reporters Bob Woodward and Carl Bernstein promising confidentiality to "Deep Throat" who repeatedly provided crucial information. Likewise, Williams and Fainaru-Wade needed a confidential source to provide information for a series of articles and a book that revealed the extent of steroid abuse in professional sports. Their revelations helped to spur baseball to adopt a long-needed, much more stringent drug-testing policy.
Unfortunately, the Supreme Court, in Branzburg v. Hayes, 408 U.S. 665 (1972), in a 5-4 decision, held that the First Amendment does not protect the right of reporters to keep their sources confidential. Justice Byron White's opinion for the majority rejected the claim that reporters need confidentiality to get and tell important stories. The court concluded that "the public interest in law enforcement and in ensuring effective grand jury proceedings" is sufficient "to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or a criminal trial."
The response was that states across the country adopted statutes protecting the secrecy of reporters' sources in state court proceedings. Statutes, of course, can provide more protection of rights than the Constitution. Thirty-one states, including California and the District of Columbia, have shield laws that protect reporters from being punished for not revealing their confidential sources.
However, there is no such federal shield law, which means that in federal courts across the country reporters have no protection from being forced to disclose their confidential sources or being sentenced to jail. For many years, this was not a serious problem as federal prosecutors refrained from trying to send reporters to jail and as lower federal court judges interpreted Branzburg v. Hayes to allow some protection for reporters. In Branzburg, Justice Lewis Powell, who voted with the majority, wrote a separate concurring opinion saying that courts should balance the courts' need for the information against the costs to the public's right to know in putting reporters in jail. Powell wrote that "[t]he asserted claim to privilege should be judged on its face by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions."
Many lower courts used this balancing test to protect reporters, even though Powell was writing just for himself in a concurring opinion and even though White's majority opinion rejected constitutional protection for reporters to keep their sources confidential. See, United States v. Burke, 700 F.2d 70 (2d Cir. 1983); Miller v. Transamerican Press Inc., 621 F.2d 721 (5th Cir. 1980); Zerili v. Smith, 656 F.2d 700 (D.C. Cir. 1981).
But in recent years, federal prosecutors have sought jail time for reporters who keep their sources secret. Also, federal judges have rejected a balancing approach and have flatly rejected any protection for reporters seeking to keep their sources confidential. The result has been reporters being put in jail for refusing to disclose their confidential sources. For example, last year, Judith Miller, then a New York Times reporter, spent several months in jail for refusing to reveal her confidential sources in the investigation of who disclosed that Valerie Plame was a secret operative for the Central Intelligence Agency. The federal courts for the District of Columbia rejected any First Amendment protection for reporters in the investigation. In re Grand Jury Subpeona, Judith Miller, 397 F.3d 694 (D.C. Cir. 2005).
Everyone is the loser when reporters are put in jail for not disclosing confidential sources. Other reporters will be much more reluctant to promise confidentiality to sources. Important stories won't get written. Whistle-blowers exposing corruption in the government and private industry will be much less likely to come forward without assurances of confidentiality. Law enforcement agencies will be the losers, too, as often reporters can expose criminal activity that prosecutors don't uncover.
Hopefully, the federal judge, Jeffrey White, who sentenced Williams and Fainaru-Wade to jail will reconsider their punishment. Nothing in the law requires that he put these reporters in jail. Failing that, the hope must be that the federal Court of Appeals will reverse White and follow the approach of Powell and conclude that the public's right to know outweighs the need to find out who leaked the grand jury transcripts.
But the real solution must come from Congress. A bipartisan bill is now before the Senate Judiciary Committee to provide reporters the ability to keep their sources confidential. Such shield laws have worked well in state courts for decades. California voters passed Proposition 5 and adopted a shield law as a part of the California Constitution after Los Angeles Herald Examiner reporter William Farr went to jail for refusing to disclose the confidential sources that he relied on for his stories. Farr v. Superior Court, 22 Cal.App.3d 60 (1971). The California Constitution provides that, a newsperson "shall not be adjudged in contempt ... for refusing to disclose the source of any information procured while so connected or employed [as a newsperson] ... or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." Constitution, art. I, Section 2, subd. b; see also Evidence Code Section 1070.
The California shield law is not absolute. The California Supreme Court has held that to overcome a reporter's privilege "a criminal defendant must show a reasonable possibility the information will materially assist his defense." Delaney v. Superior Court, 50 Cal.3d 785 (1990). The shield law in California has worked well for decades in providing protection for reporters while not compromising the rights of criminal defendants.
It is long overdue for Congress to provide this protection for reporters in federal courts. The reality of Williams and Fainaru-White being behind bars for doing their job and informing the public should finally be the impetus for this law to protect all of our right to know.
Erwin Chemerinsky is Alston & Bird Professor of Law and Political Science at Duke University.
Eric Berkowitzn
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