By Christopher B. Daly
First, the Obama administration antagonized the news media by seizing the phone records of The Associated Press. Now, in an effort to make up, the president has thrown his support behind a Senate bill that would create a federal “shield law” that would allow journalists to legally protect their confidential sources.
A lot of journalists have embraced the idea. But I believe that journalists should say, “Thanks, but no thanks.”
Tempting as it might be, a federal shield law is a bad idea for journalists. We do not need it, and we may ultimately regret it. The relevant part of the First Amendment to the Constitution says: Congress shall make no law abridging the freedom of the press. That powerful simple phrase “no law” means just that – no law, period. It means Congress simply cannot legislate in this area.
As a near-absolutist about the First Amendment, I think that part is clear and simple. Furthermore, I believe that a proper reading of the First Amendment makes a shield law superfluous. We almost got such a reading in 1972, in the Supreme Court case known as Branzburg v. Hayes. In that case, the nation’s highest court said that when prosecutors haul reporters in front of federal grand juries and demand to know the names of their sources, the reporters must reveal their sources or face going to jail for contempt of court. In other words, reporters do not enjoy a legal “privilege” against having to testimony such as those enjoyed by doctors, lawyers, or clergy.
The ruling in Branzburg, while wrong, was nearly right. It was a 5-4 ruling, and one of the majority justices was clearly ambivalent about the issue. Justice Lewis F. Powell, as the New York Times reported in 2007, wrote some handwritten notes while the case was being decided. Powell (no friend of the news media) went right up to the line of agreeing with the minority instead of the majority. He wrote:
I will make clear in an opinion . . . that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. . . . My vote turned on my conclusion . . . that we should not establish a constitutional privilege.
Those notes are fairly opaque, but they do suggest that reporters very nearly got the recognition they deserve. [Brief digression: Powell's notes were written on a court form captioned U.S. vs. Caldwell. That's not a mistake. The Branzburg case was combined with two others in 1972, including a federal subpoena ordering NYTimes reporter Earl Caldwell to testify before a federal grand jury and name his confidential sources among the Black Panthers. For more, see chap XX of my book, Covering America.] The reasoning for granting reporters a “testimonial privilege” is pretty straightforward. Through the First Amendment, the Constitution gives the practice of journalism a special status that recognizes the vital role that a free and independent press plays in the ability of the American people to govern themselves. If the people are to make informed votes and policy choices, they need good sources of information — especially about the performance of the government itself. But like many powerful institutions (corporations, the clergy, and others), government officials like to control the flow of news and information. So, they regularly try to intimidate and chill the practices of journalism.
The practice of journalism includes both a news-gathering function and a news-disseminating function. Neither one is of much use without the other. That is, if journalists are free to disseminate news but not to gather it, they will have nothing of value to share with the people. Conversely, if they are free to gather news but not to disseminate it, the people will again be thwarted in their ability to learn the things they need to know to govern themselves. Thus, journalists must be free to gather news (by reporting) and to disseminate news (by printing, broadcasting or posting).
In the normal course of news-gathering, journalists seek information in all quarters. They observe some events first-hand, they examine documents, and they interview people. Often, the most sensitive and valuable kinds of news come to journalists from sources who need to remain anonymous to avoid retaliation such as being fired or prosecuted. In those cases, journalists promise the source confidentiality. They say something along these lines: Please give me the important information you have, and in return, I will promise to keep your identity a secret.
These kinds of promises are not routine, but they are fairly commonplace — especially in certain kinds of fields, such as reporting about the military, our spy agencies, or any sort of abuse of power. The source wants to blow the whistle on a secret that the source considers illegal, immoral, or just plain wrong. Often, the reporter is indifferent on that question, but the reporter can see that the material should reach the general public, so that the American people can decide the issue.
Should we, for example, use drones to kill American citizens abroad? That’s an important question, but we could not even debate it without “leaks” from confidential sources. Without a constitutional privilege, reporters make such promises to their sources at their peril. It is perfectly predictable that those in power (from either party) will reflexively attempt to control the flow of information to the people. One attractive mechanism for doing that is to force journalists to name their confidential sources and then to go after the sources and punish them. If I were a tyrant seeking to use the limited powers of government to create unlimited personal power, that is one of the ways I would go about it.
That is exactly what Thomas Jefferson and his supporters among the Founders foresaw and sought to prevent. One of the remedies they came up with was an absolute guarantee of press freedom. That’s why I believe we journalists do not need to ask Congress to bestow such protections on the practice of journalism. Indeed, we should be wary of inviting Congress to legislate about the press at all, because once legislators start writing laws, it is exceedingly difficult to get them to stop. Today, they may say they are proposing to do us a favor by granting us a shield. Tomorrow, having established the precedent, they may decide to improve that law by “clarifying” just who is a journalist. Before long, Congress might decide to license journalists or protect confidential sources in the Executive branch but deny such protection to their own staffers. There would be no end to it.
Instead, I believe that journalists should stand firm and insist on the rights we already have under the First Amendment. That was essentially the view expressed by one of the dissenters in the Branzburg case. In an eloquent and penetrating opinion, Justice William O. Douglas argued that the First Amendment exists for the ultimate benefit of the American people. When reporters do their jobs, Douglas wrote, “the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government.” But if journalists can be intimidated into giving up their confidential sources, he warned, then “the reporter’s main function in American society will be to pass on to the public the press releases which the various departments of government issue.”
[Full disclosure: I worked for The Associated Press for a total of 10 years, between 1976 and 1989, in the NYC world headquarters and in the Boston bureau.]