Abstract
Where did the idea that journalists should have a special privilege to refuse to disclose confidential sources and unpublished information come from? For many outside the profession, it first surfaced in the high-profile case of then New York Times reporter Judith Miller, who spent eighty-five days in jail in 2005 when she defied a court order to testify about her sources to the grand jury investigating the leak of the identity of CIA agent Valerie Plame. For others, it was the incarceration in 2006 of activist and blogger Josh Wolf, who, after his 226-day stint in federal prison for contempt for refusing to surrender raw videotape of a violent demonstration to the FBI, made an unsuccessful bid for the office of mayor of San Francisco, and then went to work for a small newspaper in Palo Alto—settling once and for all, he insisted, that he was indeed a “real” journalist.
But as Jason M. Shepard, assistant professor of communications at California State University, Fullerton, reminds us in his book Privileging the Press, it all started with James Franklin (brother of Benjamin) and John Peter Zenger, both professional printers who were jailed when they published anonymous criticism of officials in colonial America. These two men were the beginning of a long line of defiant individuals who defined their role in life by challenging authority, and who believed themselves ethically bound to protect those who entrusted them with the information to make that possible.
Like Gaul, Shepard’s book is divided into three parts: defining the legal difficulties of persuading courts to recognize a journalistic “duty” to protect sources, describing the history of that duty, and discussing how journalism ethics could be utilized to craft a journalists’ shield law that might actually pass in Congress—an elusive goal that has defied hundreds of attempts ever since the Supreme Court ruled in 1972 in Branzburg v. Hayes that the First Amendment provided no privilege to protect reporters from testifying before grand juries.
Shepard describes how New York attorney James Goodale managed to turn the lemon of Branzburg into lemonade by persuading many courts to recognize at least a qualified constitutional privilege in other circumstances. Coupled with guidelines from the U.S. attorney general discouraging the subpoenaing of journalists in federal investigations, as well as the enactment of statutory shield laws in many states, the journalists’ privilege seemed to be reasonably well established in the United States. But when influential federal Judge Richard Posner observed in a 2003 case that judges who relied on Branzburg as the basis for a privilege might be “skating on thin ice,” the idea of constitutionally based protection began to erode.
After that, much like in the post-1972 period when journalism groups and their advocates—notably Wisconsin congressman Robert W. Kastenmeier—tried to push a federal shield law through the legislature, a motley array of lobbyists launched a series of desperate but ultimately fruitless efforts to persuade Congress to enact a statutory privilege. Internecine squabbles over the scope of such a privilege, and, perhaps most significant, who would be allowed to invoke it, meant that the undertaking was doomed, despite the best efforts of media lawyers, scholars, and pundits. In the wake of WikiLeaks and the specter of the likes of Julian Assange cavalierly publishing classified documents online, how likely is it that members of Congress would seriously contemplate enacting a statutory privilege of any kind?
Shepard argues that there is one ray of hope: if professional journalists (however we define them) could make the case that legally upholding their ethical standards for making and keeping promises to sources would best protect the public interest. The problem, however, is that many of those who are doing journalism-like work these days never heard of the Society of Professional Journalists Code of Ethics, or, if they have, they reject its tenets out of hand. Trying to assemble and present a unified front on what the ethics of confidential source relationships should be is even more challenging today than was the case in 1972.
In the end, though, none of this may matter. Sophisticated surveillance techniques that allow law enforcement officials to monitor journalists’ digital and wireless communications may render the subpoena obsolete. In January 2012, Columbia Journalism Review quoted Reporters Committee for Freedom of the Press director Lucy Dalglish (now dean of Maryland’s Philip Merrill College of Journalism), who claimed that she had been told by an (unidentified) intelligence agent, “You guys are so worked up about a shield law, and guess what, we don’t need you guys anymore, we know who you are talking to.”
Accordingly, Shepard’s book may be of greatest interest as a historical artifact rather than as a basis for policy development. I confess that reading it made me—a lawyer-turned-scholar who labored in the media law field for more than twenty-five years—feel very old. This comprehensive litany of triumphs and failures offers little that is news to me. But the book is useful because its author has pulled together the many threads that make up the stormy history of the journalists’ privilege into one compact volume. If I were still working at a law firm, I’d make it required reading for any new associates who want to practice media law. Perhaps then they could avoid repeating the mistakes made by those who preceded them.