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.]
Prof Chris Daly's Blog 
Pingback: On Journalists & Shield Laws
First rate analysis. It’s why our simple, short Constitution has lasted as long as it has. What we do need is a better educated judiciary with the strength to stand against a storm!
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“No law” does not mean “no law,” as Alexander Bickel, co-counsel for The New York Times in the Pentagon Papers case, said in response to a question by one of the Supreme Court justices. He was not just being tactical.
Try reviving the Aztec religion. The first time you sacrifice a virgin expect to get indicted for murder despite the First Amendment’s first words being “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” including its implied protection for nonexercise.
And the First Amendment applies to government “abridging the freedom of speech, or of the press,” and not to private institutions, even ones whose existence is a state-granted privilege.
That said, I agree that as journalists we are better protected on a case-by-case basis and by public outrage over government acting as a power unto itself.
A shield law would likely devolve, as the Freedom of Information Act has, into a tool of denial rather than a shield, and into a cumbersome delay mechanism, as with New York State’s similar FOIL. As I teach my Syracuse law students, a law that shields can also be wielded as a sword (and every sword can be a shield), provided you understand the underlying principles of law and use that knowledge to shape your legal arguments.
Unfortunately, decades of well-financed attacks on honest journalism, and the rise of immensely profitable and influential faux news organizations, have undermined popular support for hard news reporting focused on making government, and other centers of power, accountable.
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Thanks, David. As a long-time admirer of your work, I appreciate your comment. Still, I agree with Justice Douglas’ magnificent dissent in the Branzburg case. He wrote, in part:
The New York Times, whose reporting functions are at issue here, takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government. My belief is that all of the “balancing” was done by those who wrote the Bill of Rights. By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case. . .
Sooner or later, any test which provides less than blanket protection to beliefs and associations will be twisted and relaxed so as to provide virtually no protection at all.
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If only the left-wingers would read the rest of the Constitution this way. When it’s a topic they don’t like, they quickly generate lists of excuses.
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When you cannot justify a legal position on precedent or facts (such as the abject failure of those who supposedly granted absolute First Amendment rights to ever act as if they had, in the Alien and Sedition Acts and a host of other instances), calling it “magnificent” is neither journalism nor history, but wishful thinking and slight of hand puffery.
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OK, David. Let me just say that William O. Douglas was no dope, and he had three justices on his side in the Branzburg ruling.
Let me also say that Jefferson was appalled by the Alien & Sedition Acts and worked to have them nullified. He almost succeeded before he got elected president and his supporters gained enough seats in Congress to let the Sedition Act expire.
What we are talking about here are close cases (5-4 decisions, narrow congressional majorities) — not ridiculous propositions. I think the court was wrong in Branzburg, and I hope a majority someday agrees with me. There are examples of the court righting its own wrong decisions.
What do you think should be done in the meantime?
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I agree that Douglas, like Scalia, was no dope. I trust you agree that he was, however, open about his disregard for precedent or even law, as well as someone willing to intern Japanese-Americans to promote his presidential ambitions; take sexual advantage of women employees; treat his wives as badly as Newt Gingrich; assert he was still an active Supreme Court Justice even after he resigned and his successor was seated; and fabricate being an army private in order to be buried at Arlington.
One of the few topics which the many fine journalists who cover the Supreme Court and law seldom have examined is the extent to which some of the icons of the rights of reporters were deliberately shaping their opinions, regardless of the law, to curry favorable press treatment, especially when they had previously committed acts which they wanted the press to ignore, such as Douglas’ actions; to Hugo Black’s KKK membership and authorship of Korematsu; Kaufman’s treatment of the Rosenbergs, etc.
I also agree with your notations about Jefferson, although it neither shows that he believed the First Amendment was absolute nor that a majority of those who supported the First Amendment’s passage did.
As for what should be done while Branzburg remains law, I cannot resist getting on a soapbox and apologize in advance for doing so.
I think there needs to be more open discussion of the negative ramifications of increasing journalists’ immunity from legal obligations. I find it inconsistent of the many journalists who regularly (and, I believe, often rightly) accuse large corporations of having too much power to assert that large media conglomerates’ employees should be given even greater power. There are now some glimmers of that realization with the Koch Brothers’ reported interest in buying the LA Times. We have already seen the Murdoch empire justify its hacking of phones and bribery of public officials in the UK as within the rights of the free press; the Scooter Libby example of politicians attempting to exploit journalists’ privilege for nefarious purposes and Standard & Poo’s justify its knowingly false high ratings of worthless financial instruments as protected by the First Amendment.
I would like to see journalists’ do more self-examination to ensure they merit the substantial legal special privileges they already have before arguing for more. Even before financial strains reduced many media factchecking budgets, we had the Washington Post, New York Times, Philadelphia Inquirer and New Republic, among others, all admit to printing fabrications. If press protection is extended to bloggers, many of whom delight in spreading lies about their foes, most often Obama, victims of the press will receive even less protection.
Finally, much as Occupy Wall Street hopes that the latitude given the evil rich by Citizens United will generate a backlash, journalists should consider whether the public, with its already low regard for the honesty of one or more of Fox, MSNBC and the “mainstream media”, will be receptive to notions of journalists being even more immune from the legal obligations the rest of us endure. Journalists may already forget how incompetent and sometimes reckless much of the coverage of the Boston bombings was, but the public has not.
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Points well taken. Thanks.
My starting point is that self-government requires a free and independent press. Ideally, it would be both perfectly free and perfectly responsible. Alas, we have to live with our best efforts (as we do with all our elected officials, our justices, our clergy, etc.)
Still, I worry: if our experiment in self-government ends, it will be because the new tyrant figured out a way to thwart the free press — by intimidating it, by buying it, by corrupting it, by getting the rest of us to consider it unimportant.
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Good points, although I note that the wonderful efforts the press has made in recent years to expose wrongdoing in the government, clergy and judiciary have not been matched by rigorous self-examination, although the Times did a good job of covering the Murdoch hacking scandal and its own Miller and Blair issues.
Ironically, a tyrant may not need to thwart a free press, because the young people who are most fearful of tyrants are unwilling to pay $1 a day for a high quality, independent watchdog newspaper, but will pay $15 a day for high quality lattes. Anyone who thinks that bloggers and twitterers will do the investigative reporting that used to be done by the financially ruined Philly Inquirer, New Orleans Times Picayune, Denver Rocky Mountain News, etc is deluded.
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@ David on “I would like to see journalists’ do more self-examination to ensure they merit the substantial legal special privileges they already have before arguing for more.”
Journalists publish tons of self criticism, unlike cops,prosecutors, doctors and many others. You should know that, based on what you wrote above.
First there are the very examples you cite. And there are many more. The LATimes did a 48k special section on the corrupt Staples deal, for example, and the Inquirer’s story on how its political reporter became the lover (and later wife) of a political boss ran 32,000 words back, oh, close to 30 or more years ago.
I wrote an expose of frauds for the American Journalism Review three decades ago citing eight or ten frauds, all self-exposed or written up in full when otters discovered them.
Before that, on the front page of the Detroit Free Press over three years, I revealed news blackouts and manipulations by the owner of WJIM-TV and five broadcast stations. The owner was eventually forced off the air for that (and other misconduct subsequently dug up by a freshly minted lawyer going up against one of the best litigators in Michigan).
The Columbia Journalism Review (for which I now write a column) has been at it since 1961. In the 60s through 80s we had feed/back, the California Journalism Review; the St Louis Journalism Review; (MORE) and many others.
The measure of integrity is not that a falsehood got published. All institutions hire bad people who slip in, from cops who frame innocent people to doctors who butcher again and again, to newspapers that hire fiction writers. The latter generally get caught quite quickly. When they do news organizations, at least in the last four decades. own up to it, tell their readers and take corrective action.
Now name me cops and prosecutors who have been shown to have repeatedly framed the innocent whose peers published unvarnished exposes of their work; ditto surgeons who should not be allowed to hold a scalpel, accounting firms that cook the books and…well, you get the point. As the saying goes (which I am sure Idid not invent but which researchers working for me cannot find in print before I wrote it years ago):
Doctors bury their mistakes, lawyers see theirs off to jail; only reporters sign their on the front page for all the world to see.
BTW, every journalist I know who was caught fabricating has been unable to find work at a newspaper, unlike many dishonest cops, prosecutors and doctors who stayed in their jobs or went on to work elsewhere in their chosen fields.
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Hear, hear!
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I agree, almost without quibble. As for my quibbles:
1. While some press organizations have done admirable self-examinations, have you ever read one by any of the Murdoch media?
2. The media have generally avoided focusing on the very lucrative speaking and television fees journalists earn and how, since the vast majority of those fees go to the most outspoken journalists, it may account for not just the recklessness of Coulter, Olbermann, et al, but such irresponsible conduct as George Will suggesting Obama be impeached or Peggy Noonan claiming the current issues are the worst scandal since Watergate (conveniently ignoring not just anything involving Dick Cheyney, but her former employer’s Iran/Contra fiasco).
3. Although you rightly criticize the omerta of prosecutors, many journalists protect prosecutors or plaintiffs lawyers who leak to them–have you ever seen a report of a leak of litigation documents embarassing a corporation which noted “these documents were given to us by a lawyer for allegedly injured plaintiffs who had signed under oath that they would be kept confidential, in order to extract a larger settlement?”
4. Although misconduct by prosecutors and police is reprehensible because they are sworn to uphold the law, how many stories have been written about a whether well-known mob lawyers are not just consulted after the crime has been committed and whether they really did not know jurors had been bribed?
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others, not otters (and evidence of why I always praise good copy editors)
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Pingback: Obama’s media shield law makes prosecuting journalists even easier | sambhalkezabaan
Thanks for writing, but can you explain: how would a shield law make it easier to prosecute journalists?
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Absolutely! Congress should not be legislating in this area! The First Amendment protects journalists and all citizens alike, and to make a law giving a group “special” attention would serve to place such a group under the Federal governments control as to what one would be allowed to say!
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The Obama administration seem to have been deeply affected by wiki leaks, hence the obsession with cracking down on press sources, It would be most ironic if wiki leaks, an effort to promote more government transparency and press freedom, turned out to be a seminal moment in the development of a shield law that narrowed the definition of what is a journalist and that wound up placing serious restrictions on reporting on national security matters.
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