Abstract
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 Branzburg 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 non-judicial actors in the process 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 Branzburg decision, encourages debate and change through the legislative process. Smith also draws on Micheal Gerhardt’s work on non-judicial 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 Branzburg 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, Branzburg v. Hayes, to the current state of shield laws and constitutional privilege. Smith relies on a variety of sources to fill in the gaps in this story, effectively weaving news articles, legal scholarship, court cases, and legislative materials into a revealing narrative that highlights the interaction between the judicial and non-judicial actors. For example, in each chapter, Smith discusses the language used in legislative responses that mirrors or closely tracks the courts’decisions. This reliance is not only a means of expediency for the legislatures but also aids in the dialogue with the courts. In the chapter discussing reaction to Branzburg, Smith notes the distinction between state shield laws authored before the Supreme Court’s 1972 decision and those authored after; the post-Branzburg statutes were longer and specifically responded to concerns raised in Justice White’s opinion in Branzburg. And, as has often been noted, many post-Branzburg statutes incorporate the three-part test described in Justice Stewart’s dissenting opinion.
Another key issue Smith focuses on throughout the book is the covered person. A prominent challenge in the passage of a federal shield, the definition of who is a journalist—who would be covered by this statutory protection—has been tackled in a variety of ways by the lower courts and state statutes. Smith describes the approaches to this element of the reporter’s privilege in distinct chronological periods: pre-Branzburg, the Branzburg era, the 1990s, and the 2000s. Before the Branzburg decision, it was common for statutes to narrowly define journalists as employees of newspapers and magazines, and later broadcast news outlets. Smith notes the broader definitions after Branzburg as technology advanced, eventually building to a standard that would protect any person in any medium seen in the Senate’s shield-law bill (p. 268).
Smith’s compelling explication of the development of the reporter’s privilege culminates in three distinct recommendations to push forward the constitutional development of the reporter’s privilege using non-judicial actors: (1) lobbying efforts in the states that have yet to pass a statutory shield law to create unanimity among the states; (2) lobbying efforts to update older state shield laws to promote uniformity among the states; and (3) lobbying efforts for a federal shield law to advance First Amendment values (p. 274).
This book is likely too focused and detailed for use in a general undergraduate media law class. It would be appropriate for a graduate class emphasizing key issues in communications law. Certain chapters, particularly the latter ones, may be useful as reading for advanced reporting classes, as well. However, media law scholars who examine the structure of laws and the relationships between government and society will appreciate the true value of this book. Smith has advanced the understanding of the process of constitutional interpretation and the importance of non-judicial actors in that process.