The federal media shield folly.

• Author: Greenberg, Brad A.

INTRODUCTION

News organizations have pushed for a federal law protecting journalists from compelled disclosure of confidential sources and unpublished information since the Supreme Court ruled more than four decades ago that reporters lack such a privilege under the Constitution. (1) Journalists' concerns are two-fold: first, compelled disclosures will chill the flow of information from sources, and, second, a secretive or grudging Executive Branch could use subpoenas to harass inquisitive journalists. The campaign for a so-called federal media shield was renewed this year following revelations that the Justice Department broadly subpoenaed Associated Press phone records over a two-month period, (2) and further invigorated following the public's discovery that the Justice Department had labeled a Fox News reporter a "criminal co-conspirator" in order to track his movements and obtain phone and e-mail records. (3)

The Free Flow of Information Act of 2013 purports to "maintain the free flow of information to the public" by providing various degrees of protection to journalists, conditioned on whether the matter is germane to a civil or criminal case, or relates to national security. (4) Journalists and publishers from traditional media overwhelmingly have endorsed the bill and urged passage. The bill also enjoys bipartisan support in the Senate and from President Obama. The only cognizable debate has concerned whether the law should limit its scope to professional journalists or extend to anyone doing journalism. (5) However, the bill, which purports to preserve the flow of information by protecting sources' expectations of confidentiality, would do little to thwart government pursuit of reporters' records; worse, it distracts public debate from a more serious threat to press freedom.

While discussing the breadth of the shield's national security exception, this Essay focuses on two core concerns regarding the bill's ability to serve its stated purpose. The first is substantive, namely that the bill overlooks the 800-pound gorilla known as the third-party doctrine. In 1979, the Supreme Court, colored by experiences of dialing a switchboard and asking an operator to connect the caller with a given phone number, held that an individual did not have a Fourth Amendment interest in his phone records. (6) In light of contemporary reporting practices and the third-party doctrine's expansion to cellular and digital technologies, I argue that any meaningful shield law must burden access to phone, e-mail, and related records. Second, I address a practical concern. Internal Justice Department guidelines indicate that a reporter can only be subpoenaed with the approval of the Attorney General. (7) Yet, if passed, a federal media shield law would diffuse responsibility across Congress and the Judiciary--in effect, reciprocally shielding the Executive Branch from public accountability.

While the substantive concern suggests that the bill needs further reworking to provide the desired protections, the practical account implies that some shield laws would impose more cost than benefit. Whereas journalism advocates tend to see the shield debate as binary--yes or no, good or bad--it is riddled with complexity. That is, some shield is not necessarily better than no shield. Yet, in light of recent threats to the free flow of information and the democratic role information plays in empowering people and holding officials accountable, additional protections are needed. In this Essay, I argue that, at the least, the shield bill in Congress needs to provide stronger limitations on the third-party doctrine. Without those reforms, a reporter can give a source little guarantee of confidentiality.

1. OFF THE RECORD AND VERY HUSH-HUSH

   The news business trades in information. Reporters compete against those at rival papers for the biggest revelations, with the most sought-after stories being those based on leaks, confidential documents, and unparalleled access. As Max Frankel, then the New York Times' Washington, D.C. bureau chief, said about top journalists in his 1971 affidavit in the Pentagon Papers case: secrets are "the coin of our business." (8) Much of this trading in information relies on the promise of confidentiality. But reporters repeatedly have resisted compelled disclosure even of unpublished records, such as notes, tapes, and observations, and of information not obtained under a confidentiality agreement--even to the point of being jailed for contempt. (9)

   Journalists give many reasons for needing to keep unpublished information private, but the justifications boil down to promoting the flow of information by (1) protecting the confidentiality of speakers who want to remain anonymous and (2) shielding the press from government interference or harassment. (10) The former concerns the source's right to speak (11) and the public interest in not being denied access to the information. The latter is also concerned with public access to empowering information, (12) but it is grounded in the theory that the press acts as a check on government, the so-called Fourth Estate. (13)

   Recently, numerous high-profile incidents have called into question whether journalist-source communications really are private and whether journalists can actually fulfill promises to keep sources in confidence. In early May, the Associated Press (AP) discovered and reported that the Justice Department had subpoenaed two months of phone records for "the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery...." (14) The government refused to say why it sought the records, but the AP inferred that the government was seeking information regarding how the AP learned of a foiled airline-bombing plot. (15) A few days later, the Washington Post reported that the Justice Department had investigated Fox News reporter James Rosen as a suspected co-conspirator of a former government official who allegedly leaked classified information to Rosen. (16) Though Rosen was not charged, journalists and government watchdog groups claimed the inquiry, which Attorney General Eric Holder defended as "appropriate," (17) threatened to "criminalize" journalism. (18) Meanwhile, New York Times investigative reporter Jim Risen has spent years fighting Justice Department efforts to compel his testimony in the case against a former CIA official accused of leaking information to Risen. (19) The Fourth Circuit Court of Appeals ruled in July that Risen must testify at the former CIA official's trial, and Risen's petition for rehearing was denied. (20) At the time of this Essay's publication, Risen was awaiting the Supreme Court's decision on whether to grant certiorari. (21)

2. A BRIEF HISTORY OF SHIELD LAWS--AND THE PENDING FUTURE

   Whether and to what extent a reporter could be compelled to disclose information in federal court depends on the relevant jurisdiction. The circuit courts have split multiple ways on the extent of a reporter's constitutional privilege against compelled disclosure. (22) This fracturing stems from Justice Powell's concurrence in Branzburg v. Hayes, (23) in which the Supreme Court effectively split 4-1-4. (24) Justice Powell joined the majority opinion saying there was no privilege on the record before the Court, but seemed to side with the four dissenting justices on the availability of a constitutional reporters' privilege under different facts, specifically if the subpoena was not issued by a grand jury. (25)

   States have long recognized reporters' privileges, (26) with forty-nine states and the District of Columbia offering various statutory (27) or common law protections. (28) "Wyoming is the only unenlightened one," in the words of a former Society of Professional Journalists president. (29) Because state-based reporters' privileges involve restricting what state courts may compel in the production of evidence, federalism constraints prevent Congress from creating uniformity across state courts by preempting state shield laws or setting a national baseline protection.

   But the Branzburg majority stated that Congress could legislate a protection against compelled disclosure in federal court. (30) And for the past four decades, passage of a federal reporter shield law has been a frequent priority of news organizations and industry coalitions. The Free Flow of Information Act of 2013 is the latest in a long line of such bills; already through committee review in the Senate, the bill has bipartisan support and the backing of President Obama. Its stated purpose is "[t]o maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media." (31) The bill makes no mention of protecting journalists from government interference.

   The Free Flow of Information Act would replace the inconsistent applications of reporter's privileges with default federal rules for subpoenaing journalist records. The most debated aspect of the bill, the covered-journalist provision, states that the shield applies to anyone who is, or on the relevant date was: associated with a media organization with the primary intent to gather and disseminate information about matters of public interest; a freelancer with an established record; or a post-secondary journalism student. (32) Significantly, the bill provides judges discretion to find that those not within the statute's express definition were acting as journalists, and are therefore protected. (33) The underlying theory driving the bill--whether source...