Big dig confidential: why Massachusetts needs a statutory journalist's shield law if it wants to keep the big stories coming.

• Author: Burke, Matthew P.
• Position: NOTES

"A reporter is no better than his source of information. If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended ... [and] the reporter's main function ... will be to pass on to the public the press releases which the various departments of government issue." (1)

1. INTRODUCTION

   The Central Artery/Tunnel project in Boston, Massachusetts, or "Big Dig" as it came to be known, was intended to reconnect Boston by breaking down barriers caused by a divisive, raised highway between the waterfront and downtown sections of the city. (2) Instead, the project, which did place the highway beneath the city thereby creating acres of parkland, made Boston the poster child for public construction corruption. (3) Reporters worked feverishly to discover time and financial problems with the Big Dig long before a woman lost her life in one of the project's tunnels because of questionable construction methods. (4) Using confidential, off-the-record, and nonconfidential sources alike to reveal massive cost overruns and multi-year delays, these reporters informed the public where their tax dollars were really going. (5) Without such reporting it is quite possible that the vast scope of the problem would have never seen the light of day, or more likely would have been overshadowed by grand public ceremonies celebrating accomplishments without acknowledging that promises of cost and time were beyond broken. (6) This caveat of protection by reporters may have been the only thing standing between disclosing insider knowledge on the factors causing delays and cost overruns and simply taking the safer route by remaining behind the scenes, not risking sources' money, jobs, or worse, by speaking out publicly. (7)

   Investigative reporters have often relied on confidential sources to generate some of the most groundbreaking news, including the Pentagon Papers, Watergate, the Iran-Contra scandal, and more recently, the Abu Ghraib prison scandal and the collapse of Enron. (8) Many influential stories that have generated lasting repercussions may not have been possible without journalists promising their sources absolute confidentiality. (9)

   The most recent controversies over confidential sources and reporters refusing to disclose their identity left reporters honoring their confidentiality promises in jail or facing thousands of dollars in fines. (10) A federal judge ordered a former USA Today reporter to pay escalating fines when she refused to disclose the identity of sources she promised confidentiality while investigating the anthrax attacks that followed the September 11, 2001, terrorist attacks. (11) Despite the reporter's uncertainty regarding who exactly provided her with information that linked the plaintiff to the attacks, given the five-year time lapse between the articles and lawsuit, the judge imposed fines to urge the reporter's compliance. (12) The reporter was personally responsible for the fines and could not rely on any outside sources for assistance, not even the newspaper that published the stories. (13) In his ruling, the trial judge acknowledged "the importance of the media's ability to report the news" but deemed the "rule of law" as fundamental as the First Amendment. (14)

   In a more widely publicized case, New York Times reporter Judith Miller was incarcerated after a judge held her in contempt of court for refusing to identify the confidential source who provided her with the identity of an undercover CIA agent, Valerie Plame. (15) Additionally, a judge offered two San Francisco Chronicle reporters the choice of disclosing the source who told them about baseball star Barry Bonds's unknowing use of steroids or facing jail time. (16) These reporters were undoubtedly aware that their groundbreaking stories would not exist without the ability to guarantee anonymity to their sources. (17) Indeed courts have noted that when considering whether to recognize a privilege, the free flow of newsworthy information would be hurt if judges forced reporters to divulge confidential sources. (18)

   Not surprisingly, the USA Today case, the Judith Miller fiasco, and the Barry Bonds story all stoked renewed interest in devising federal legislation that would protect reporters from disclosing their sources. (19) As more instances of ordered disclosure have arisen in recent years, various legislators have recognized the "chilling effect" of forced disclosure on freedom of speech. (20) Proposed federal legislation would protect reporters seeking to maintain their sources' confidentiality in certain qualified circumstances. (21) The proposals that followed the Miller and Barry Bonds cases, however, failed to gather enough support and never reached a vote before Congress in 2006. (22) At this time, it is unclear whether the renewed calls for federal legislation in the wake of the USA Today case will be enough to overcome previous hurdles. (23)

   Massachusetts, unlike many other states, does not have a statutory journalist privilege. (24) Rather, Massachusetts courts apply a balancing test that weighs the public interest in access to everyone's information against the public interest in the free flow of information, while acknowledging that confidential sources are crucial for the free flow of information. (25) While this test has allowed reporters to keep sources confidential at times, (26) its most recent application resulted in massive fines against the Boston Globe for refusing to adhere with a court order demanding the identity of sources. (27)

   In light of recent crossroads on past recognitions of some sort of privilege in keeping confidential sources confidential, Massachusetts should join thirty-two other states and the District of Columbia and create a statute that expressly defines a reporter's right to keep unnamed sources confidential. (28) Although such proposals have been considered in the Commonwealth before, supporters have been unable to garner enough support in the Massachusetts Legislature to enact protection for journalists from forced source disclosure upon judicial whim. (29) Now is the time to seriously consider the merits of such proposals and craft a statute that can best serve journalists and the public. (30)

   This Note advances such an argument by focusing on the various approaches taken by the federal courts, as well as various state courts and state legislatures in recognizing a privilege for reporters to prevent forced disclosure of confidential sources under either limited circumstances or at all times. Part II.A discusses the federal history of protecting, or not protecting, journalists from compelled disclosure of confidential sources. Part II.B focuses on the approaches taken by states that recognize a privilege, either through shield law or judicial decision. Part II.C discusses the history of Massachusetts's recognition of any sort of privilege, as well as the most recent case, which appears to impede on any past recognition of a right to avoid compelled disclosure. Part II.D outlines some of the benefits from allowing journalist protection from compelled disclosure and delineates who should be protected and how far any statutory shield law should extend. Finally, Part III analyzes the approach Massachusetts should adopt in order to protect the news media's free flow of information from forced disclosure at the whim of judges applying a balancing test in a haphazard manner.

2. HISTORY

   1. Federal History

      Freedom of the Press dates back to colonial times and is specifically addressed in the First Amendment. (31) Indeed, before the Revolutionary War colonial leaders defended the press corps's freedom and right to publish articles critical of the British government. (32) Yet it was not until 1972, in Branzburg v. Hayes, (33) that the Supreme Court considered the implications of the Press Clause on subpoenas calling for the identification of confidential sources. (34)

      The Branzburg case consolidated three cases involving reporters who used informants or confidential sources to report stories. (35) One of the cases involved a reporter who refused to testify in front of a grand jury about drug use he had observed and written about. (36) The other two cases involved reporters who gained access to Black Panther meetings and subsequently refused to disclose what they saw to a grand jury. (37)

      The Court, by a 5-4 vote, declined to recognize a right for reporters to refuse to testify in front of grand juries when doing so would likely force them to reveal confidential sources. (38) The majority agreed with the common-law approach, which did not recognize any right for reporters to refuse to disclose confidential information to a grand jury. (39) The Court reasoned that such a decision would not "threaten the vast bulk of confidential relationships between reporters and their sources." (40)

      The Court's decision, however, did not signal the death of any future recognition of a reporter's privilege, as many lower federal courts interpreted the decision as only applying to grand jury subpoenas and therefore endorsed a privilege to some extent. (41) Lower federal courts have also latched onto the concurring and dissenting opinions in Branzburg, which were far more accommodating of some privilege. (42) Justice Powell's concurring opinion called for a "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." (43) Justice Stewart's dissent advanced a qualified privilege to protect the free flow of information and prevent governmental interference with the freedom of the press. (44) Justice Douglas went even further and called for an absolute privilege, arguing that any balancing had already been accomplished by the Bill of Rights. (45) He argued that any balancing test would eventually become so watered down and twisted that...