Protecting the cloak and dagger with an illusory shield: how the proposed Free Flow of Information Act falls short.

• Author: Laptosky, Jill

Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press. (1)

1. INTRODUCTION II. ABRACADABRA: THE JOURNALISTS' PRIVILEGE FROM BRANZBURG TO PRESENT A. Branzburg and Its Aftermath B. First Amendment Martyrs or Reporters "Mak[ing] Good News out of Bad Practice"? 1. Vanessa Leggett 2. Judith Miller 3. Josh Wolf C. A Reawakened Push for a Federal Shield Law: the Evolution of the Free Flow of Information Act 1. Modern Shield Legislation: Attempts of the 108th and 109th Congresses 2. Developments Since the 109th Congress III. NOT A SHIELD TO TAKE INTO BATTLE A. Vanessa Leggett B. Judith Miller C. Josh Wolf D. Back to the Drawing Board ... Again? IV. CONCLUSION I. INTRODUCTION

   Cautiously communicating through flower pots and red flags, Bob Woodward would signal that he desired a meeting with Deep Throat. (2) A Washington Post journalist, Woodward would meet Deep Throat on the bottom level of an underground garage at 2 o'clock in the morning. (3) There, Deep Throat provided information to Woodward under a promise of confidentiality--that Woodward could use Deep Throat's information under the condition that his identity remain a secret and he was never quoted. (4) The vital information that Deep Throat confidentially provided helped unravel President Nixon's administration's role in the Watergate scandal. (5) For more than thirty years, until he revealed himself in 2005, (6) Deep Throat's identity remained one of the greatest mysteries in U.S. politics.

   In retrospect, Woodward got off fairly easily. He did not have to respond to a federal subpoena seeking the identity of his confidential source. Nor did he have to spend time in jail to protect Deep Throat's identity. Alongside his partner, Carl Bemstein, Woodward told the public a revolutionary story about corruption and deceit among the highest ranks of American government, a story made possible by Deep Throat--the most famous secret source in American history.

   Of course, not all journalists have Woodward's luck. Journalists are subpoenaed in both state and federal courts to reveal a variety of documents, including their confidential sources, outtakes, notes, and eyewitness testimony. (7) In a 2006 Freedom of Information request, the Criminal Division of the U.S. Department of Justice said that "approximately 65 requests for [federal] media subpoenas have been approved by the Attorney General since 2001." (8)

   When subpoenaed, oftentimes, the journalists who write the headlines will make the headlines. In 2003, five prominent reporters (9) were subpoenaed by Wen Ho Lee, a former government scientist, to discover the names of government employees who, in violation of the Privacy Act, (10) leaked his personal information to the reporters. (11) While the government investigated Lee for providing nuclear secrets to the Chinese, (12) the reporters wrote articles about him, which he claimed, caused him financial loss, injury to his reputation, and physical and emotional distress. (13) The federal district judge ordered the reporters to comply with the subpoena. (14) Similarly, in 2008, a district judge affirmed the contempt of USA Today reporter, Toni Locy, for refusing to reveal the names of her sources in the Department of Justice and the FBI. (15) The sources leaked information to her, also in violation of the Privacy Act, about former Army scientist Steven Hatfill, who the federal government criminally investigated for mailing anthrax in the fall of 2001. (16) Until Locy revealed her sources, she faced fines starting at $500 a day for the first week, $1,000 a day for the next week, and $5,000 a day for the next. (17) Journalists have been subpoenaed and asked to break their obligations of confidentiality to sources in other recent federal cases as well. (18)

   When a nonparty journalist refuses to comply with a court order to disclose a source, he or she will likely be held in contempt of court. Contempt of court may require a journalist to pay fines. (19) Most commonly, however, contempt of court means that a journalist is committed to jail until he or she chooses to comply with the court's order. In a survey of journalists that was conducted by the First Amendment Center, eighty-four percent said they were willing to go to jail rather than comply with a court order to identify a confidential source. (20) Since 1984, at least twenty-two U.S. journalists have spent time in jail for contempt of court. (21) This Note will focus on the cases of the three journalists who spent more time in jail for refusing to disclose their sources than any other U.S. journalists: aspiring true-crime novelist, Vanessa Leggett, who, in 2001, spent 168 days in jail; (22) New York Times reporter, Judith Miller, who, in 2005, spent 85 days in jail; (23) and freelance video blogger, Josh Wolf, who, in 2006, spent more time in jail than any other U.S. journalist--226 days. (24) Journalists and media advocates frequently cite journalists like Leggett, Miller, and Wolf as evidence of a need for Congress to pass a federal shield law that would delineate conditions for the federally compelled disclosure of information from journalists. (25) The Free Flow of Information Act of 2007 (26) proposed to be such a law. The House version of the Bill, H.R. 2102, passed the House of Representatives in October 2007; however, the Senate's version of the Bill, S. 2035, after clearing the Senate Judiciary Committee the same month, never received a vote from the full Senate. (27) Most recently, the House passed H.R. 985--the 111th Congress's fledgling federal shield law. (28) While headlines of jailed journalists, like Leggett, Miller, and Wolf, revitalized the federal-shield-law revolution, one cannot help but ask whether these journalists would even be protected by the Bill their stories inspired.

   This Note will demonstrate that none of the three journalists--who were jailed longer than any other U.S. journalists in history--would likely find their sources shielded if either S. 2035 or H.R. 2102 had been the law when they were jailed. Part II of this Note will discuss the background and legal history of the shield-law revolution as well as the individual cases of Leggett, Miller, and Wolf. Part III will apply the Bill to the individual journalists' cases, show that none of them would have been protected by the proposed federal shield laws, and discuss the implications of such a finding. Finally, this Note will offer two recommended provisions that any adopted media-friendly, federal shield law should include: (1) a provision protecting nonconfidential sources and (2) congressional guidance on how to balance competing interests in the grand jury context.

2. ABRACADABRA: THE JOURNALISTS' PRIVILEGE FROM BRANZBURG TO PRESENT

   1. Branzburg and Its Aftermath

      The first time that the U.S. Supreme Court addressed whether a privilege exists in the First Amendment for journalists would also be the last time. In Branzburg v. Hayes, (29) a five-to-four decision, the Court found that journalists could not use the First Amendment as an excuse not to testify when summoned to do so before a grand jury. (30) Branzburg was consolidated with two other cases: In re Pappas and United States v. Caldwell. (31) Paul Branzburg, Paul Pappas, and Earl Caldwell were reporters working for different media (32) on unrelated stories--each of whom refused to reveal the sources of their stories and claimed a First Amendment journalists' privilege of confidentiality. (33)

      Branzburg's newspaper had printed a story about two individuals who synthesized hashish from marijuana. (34) The story included a photograph that only captured a pair of hands working above a laboratory table with a substance that was identified in the caption as hashish. (35) In the story, Branzburg kept the sources' identities anonymous. (36) He was subpoenaed and refused to reveal their identities to the grand jury. (37) In In re Pappas, the journalist had covered a Black Panthers meeting and, as a condition of entry, agreed not to disclose anything that occurred inside. (38) Pappas was subpoenaed to testify about what he had seen and heard outside of the Panthers headquarters but refused to testify, claiming a First Amendment privilege to protect confidential informants. (39) In Caldwell, the journalist maintained that even to appear before a grand jury investigating violations of the law would destroy his relationship with the Panthers and violate his First Amendment rights. (40)

      The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. (41) Justice White, writing for the Court, said that, since the record of each case revealed no prior restraint, no command to publish sources or to disclose them indiscriminately, and no tax or penalty on the press, there was no constitutional violation. (42) The fact that the journalists received information from sources in confidence did not privilege them to withhold that information during a federal government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court: "We are asked to ... interpret[] the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." (43) The Court foreshadowed that a definitional problem would arise if a privilege is recognized because freedom of the press belongs to both the "lonely pamphleteer who uses carbon paper or a mimeograph just as much as the large metropolitan publisher who utilizes the latest photocomposition methods." (44)

      Justice Powell wrote a concurring opinion in...