Protecting more than the front page: codifying a reporter's privilege for digital and citizen journalists.

Author:Rosenbaum, Kathryn A.
 
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"'The reporters who work for the Times in Washington have told me many of their sources are petrified even to return calls,' Jill Abramson, the executive editor of The New York Times, said ... on CBS's Face The Nation broadcast. 'It has a real practical effect that is important.'" (1)

INTRODUCTION

The stifling of investigative journalism stems in part from a torrent of stories in 2013 regarding the government's intrusive tracking of journalists' and individuals' cell phone records and e-mails without their knowledge. (2) The federal government also tracked two months of call records of more than twenty Associated Press phone lines. (3) In a leak probe regarding a news story about North Korea, the government surreptitiously obtained information about Fox News Chief Washington Correspondent James Rosen. (4) Officials monitored his "security badge access records to track the reporter's comings and goings at the State Department[,] ... traced the timing of his calls with a State Department security adviser suspected of sharing the classified report ... [and] obtained a search warrant for the reporter's personal emails." (5) In a secret affidavit, the Department of Justice named him an aider, abettor, and/or co-conspirator in disclosing national defense information. (6) These increased intrusions into investigative journalists chill the free flow of information. (7) In response to these interferences with the government, the Department of Justice released new regulations about how it will handle subpoenas of journalists in order to balance the interests of "protecting the American people by pursuing those who violate their oaths through unlawful disclosures of information and safeguarding the essential role of a free press in fostering government accountability and an open society." (8)

Although these recent secret search warrants targeted journalists working for traditional media outlets, future search warrants or subpoenas will not be limited to traditional journalists, as digital journalists also increasingly report in-depth stories related to crime, national security, or the government in the modern media culture. Online and digital news sources continue to grow, (9) in part because traditional journalistic outlets lay off staff (10) and publish print editions less frequently as they move more content online. (11) Only 29% of people who participated in a 2013 Pew Research Survey had read a newspaper the previous day, down 18 percentage points since 2002. (12) In 2012, 34% of those surveyed received news online or from a mobile device. (13) Social media is also growing as a news source. Of those surveyed in 2012, 19% said they saw news stories on social networking sites the previous day, up from 9% in 2010. (14) Now, at least 50% of people in the United States have a tablet or smart phone. (15) Of those who own a tablet, 64% report getting news on a tablet, and 62% of smartphone owners said they received news on a phone. (16) These statistics highlight the reduction of barriers to gather, write, report, and share news with a broad base of people. It is now possible to write or record stories without being affiliated with a traditional news outlet. This Note argues that as digital news source access and use grow, the definition of journalists should be broadened to include individuals who are producing in-depth journalism in untraditional manners.

Journalists and other supporters of a vibrant and free press believe that the First Amendment, state constitutions, statutory protections at the federal and state level, and common law privileges should protect reporters from being forced to reveal confidential sources or information during court proceedings. (17) Thus, reporters will have the opportunity to engage in more investigative journalism, increasing citizens' knowledge of what is happening locally, nationally, and internationally. (18) Additionally, a reporter's privilege prevents journalists from becoming an "investigative arm" of the government. (19) This was exemplified in the recent AP and Rosen cases, as the government attempted to use reporters' information to investigate crimes. (20) This protection conflicts with and hinders the government's desire for information to protect national security and solve crimes. (21) However, without robust statutory protections at the federal level, journalists face jail time for being held in contempt for refusing to reveal their sources. (22) Since 1984, at least seventeen journalists have been jailed for refusing to reveal sources. (23) Without a privilege, the free flow of information from sources to reporters who disseminate information to the public has quantifiably been shown to be stifled, as sources are afraid to share information. (24)

In Branzburg v. Hayes, the only case in which the Supreme Court addressed the issue, the Court refused to recognize a constitutional reporter's privilege. (25) Justice Powell wrote a separate concurrence suggesting in certain cases there may be a reporter's privilege, but also joined the majority opinion, resulting in subsequent conflicting interpretations in state and federal courts. (26)

This Note will first explain, in Part I, why journalists need to be protected, and detail the history of reporters invoking a reporter's privilege in court to protect themselves from revealing their sources or information. It will then discuss Branzburg v. Hayes in Section II A. Section II.B briefly examines circuits' receptivity to statutory or constitutional protections of reporters. The Supreme Court has stated that Congress could pass a law to protect reporters. (27) However, while multiple federal shield laws have been proposed, none have been passed. (28) The most recent proposal occurred in 2013, and as of December 2013, the Senate version was voted out of committee. (29) Section III.A will address Congress's attempts at enacting a statutory protection, specifically focusing on who would be covered in proposed bills. Branzburg did not foreclose the possibility of state statutory protections, and thirty-nine states plus the District of Columbia have codified a reporter's privilege in their shield laws. (30) This Note will briefly examine how states codify reporters' protections in Section III.B. Section III.C then considers the executive branch's self-restriction of subpoenaing reporters, which appears in the Code of Federal Regulations.

This Note argues that while the constitutional debate surrounding a reporter's privilege continues, a federal shield law is needed to provide coverage at least until the Supreme Court recognizes First Amendment protection for reporters. A shield law can provide more uniform protections to a broad range of journalists, including digital or citizen journalists, which are critical to any current iteration of a reporter's privilege. Current state protections are not sufficient because they do not protect reporters being prosecuted under federal law, which is necessary for a more comprehensive coverage that encourages meaningful reporting of nationally relevant material. As discussion over a statutory protection grows, it is important to create a statute that is relevant to the changing media landscape in which digital and citizen journalists are increasingly breaking news and investigating stories. (31) Thus, this Note, in Part IV, addresses the inadequacies of current protections and proposes the solution of a federal shield law, emphasizing the broad number of people, outside of traditional, institutional media, that the shield law should protect. The law should focus on covering those whose actions demonstrate that they are engaging in journalism. The protection should not only be extended to an individual associated with an institutional media entity. The law should cover digital or citizen journalists using Internet news sources, or even social media sites, as vehicles to publish their work. This solution is practical in light of the murky constitutional landscape that does not offer broad enough protection to the growing number of citizen and digital journalists. Although individuals should receive shield law protection from revealing sources in order to encourage investigative journalism, this should not be an absolute protection, but rather a qualified privilege subject to codified exceptions for security and safety issues.

  1. BACKGROUND

    1. Rationale for the Privilege

      Journalists and scholars empirically argue that subpoenas "'poison[] the atmosphere,'" leading to less effective and robust investigative journalism. (32) To justify a reporter's privilege, it may be difficult to fully understand the impact of a potential subpoena on reporters because all journalists are working in a world where government subpoena power exists. (33) As a result, in part because of the DOJ's monitoring of reporters, national security reporters said they "have seen increased caution from government sources following revelations that the DOJ had subpoenaed" information. (34)

      Because of the government's subpoena power, many sources believe journalists are being used as "agents of discovery" for the government instead of an independent entity designed to watch the government. (35) Other reporters say that the recent chilling of sources is more of a "slow chill that started under the Bush Administration [and] picked up significantly under Obama." (36) The six leaks the Obama administration has investigated thus far are "more than all other administrations combined." (37)

      As newspapers shrink and digital journalists grow, the problems with "poisoned" atmospheres and reluctant sources exist in the digital sphere as well. These threats are substantial and warrant statutory protection for journalists--traditional, citizen, and digital--from revealing confidential sources. (38) Thus, a wide protection is critical to a functioning democratic society:

      [The] protection [of confidential sources] is necessary to ensure...

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