WikiLeaks would not qualify to claim federal reporter's privilege in any form.

• Author: Peters, Jonathan

1. INTRODUCTION II. THE REPORTER'S PRIVILEGE, GENERALLY III. THE QUALIFIED FIRST AMENDMENT-BASED PRIVILEGE A. Efforts by the Federal Circuit Courts to Decide Who Has Status to Raise the Privilege B. Investigative Reporting Involves More Than the Mere Dumping of Documents C. WikiLeaks Has Not Taken Steps Consistently to Minimize Harm D. Summary IV. THE CONGRESSIONAL SHIELD BILLS A. WikiLeaks and the House Bill B. WikiLeaks and the Senate Bill C. Summary V. CONCLUSION I. INTRODUCTION

   Supreme Court Justice Sonia Sotomayor, in August 2010, told a group of students at the University of Denver that her Court likely would be called upon again to address the uneasy balance between national security and free speech. (1) She made that remark in response to a question about WikiLeaks, an online clearinghouse for confidential information that had released, one month earlier, more than 76,000 classified U.S. documents about the war in Afghanistan. (2) The government reaction had been fast and furious.

   The Pentagon condemned the website and demanded, through the news media, that its staff return the documents and any other documents not yet released. (3) All four branches of the armed services issued internal memoranda to personnel barring them from accessing WikiLeaks, (4) and the Department of Justice began to eye Julian Assange, the site's founder and public face, for charges under the Espionage Act of 1917. (5) Meanwhile, an Army intelligence analyst, already suspected of leaking a classified video and diplomatic cables to WikiLeaks, was sitting in a military prison in Kuwait, where he instantly became a person of interest in the Pentagon's growing investigation into the source of the Afghanistan documents. (6) WikiLeaks would not confirm whether the analyst was the source. (7)

   To be clear, that was only the government reaction in the week or two following the July 2010 release. Experts and commentators also whipped themselves into a frenzy, (8) and special interests representing the journalism industry began criticizing WikiLeaks. Groups like the Society of Professional Journalists and the Newspaper Association of America had been working for years with members of Congress to pass a federal reporter's shield law, only to see their efforts imperiled by WikiLeaks, considered by key legislators to be a threat to national security. (9) As a result, the groups stated publicly that the website does not engage in journalism and thus the shield would not provide protection. (10)

   Since then, WikiLeaks has released more than 2,000 U.S. diplomatic cables, (11) and nearly 400,000 classified U.S. documents about the war in Iraq. (12) It plans to release an additional 15,000 documents about the war in Afghanistan, withheld originally so the website could edit them. (13) WikiLeaks also plans in 2011 to "take down" a major American bank and reveal an "ecosystem of corruption" by releasing data from an executive's hard drive. (14) Meanwhile, the U.S. Department of Justice has demanded records from Twitter about the account activity of several people linked to WikiLeaks, (15) and Assange himself is on house arrest in Britain after surrendering to authorities in December 2010 and spending nine days in prison. (16) He is challenging extradition to Sweden, where he is wanted on charges of sexual molestation and coercion. (17) Assange has said repeatedly that he is innocent, and his lawyers have suggested that the accusations are "part of a political conspiracy to silence WikiLeaks." (18)

   Further, around the time Assange was detained, a group of hackers brought down the Swedish government's website and attacked the sites of companies that had cut ties with WikiLeaks, such as Visa, PayPal, Amazon.com, and MasterCard. (19) One of the hackers said that "[t]he idea is not to wipe them off but to give the companies a wake-up call" and that the group would "fire at anything or anyone that tries to censor WikiLeaks, including multibillion-dollar companies ...." (20) In that shadow and amid that drama, just before the new year, Assange signed a book deal reportedly worth $1.7 million, which he intends to use to pay legal bills. (21) A spokesman for the publishing house said the book would be "a complete account of his life through the present day, including the founding of WikiLeaks and the work he has done there." (22)

   The narrative is changing every day, and one of the issues that has arisen involves privilege--that is, whether WikiLeaks could claim a federal reporter's privilege if the U.S. government or a U.S. entity tried to compel one of the site's staff members to disclose the source(s) of any documents it has released. (23) Against that backdrop, Part I of this Article explores briefly the origins of the reporter's privilege. Part II discusses the qualified First Amendment-based privilege, highlighting efforts by the federal circuit courts to determine who has status to raise it. I argue that WikiLeaks would not have such status for two reasons: one, the website does not engage in investigative reporting; and two, it has not taken steps consistently to minimize harm.

   Part III discusses congressional attempts to pass a federal shield law. Examining the two most recent bills (H.R. 985 and S. 448) proposed in the 111th Congress, I argue that WikiLeaks was an ill fit for their definitions of "covered person." Although the bills died in January 2011, it is worthwhile to examine them because any future shield bills would be drafted in contempation of H.R. 985 and S.448. (24) Plus, WikiLeaks would be part of the debate about any future bills. (25) Part IV concludes that WikiLeaks is a strange bedfellow to the journalism industry, that the site would not qualify to claim a federal reporter's privilege in any form, and that certain questions remain unanswered.

2. THE REPORTER'S PRIVILEGE, GENERALLY

   Who is a journalist? What is a journalism organization? Those sound like pie-in-the-sky questions more suitable for a doctoral program in journalism than the federal courts. (26) However, the answers often have major legal implications. (27) Reporters and news organizations ordinarily are not exempt from laws of general application--the legal rules that apply to the public also apply to them. (28) That said, people who qualify as journalists may have "special standing to assert a qualified privilege in legal proceedings to refuse to divulge the identity of sources and to reveal unpublished information." (29) The issue, then, is who qualifies.

   The reporter's privilege today is a many-headed beast. It can be found in federal First Amendment jurisprudence, in state statutes and constitutions, and in case law. (30) The federal courts tend to recognize the privilege by way of the First Amendment, (31) while the states tend to recognize it by way of other sources. (32) Congress at different times, too, has considered legislation to create a federal shield law, one that would protect the identity of confidential sources and unpublished information unless exceptional circumstances existed. (33) The most recent attempts came in 2009, when two versions of the Free Flow of Information Act, (34) H.R. 985 and S. 448, failed to make it through the 111th Congress. (35)

3. THE QUALIFIED FIRST AMENDMENT-BASED PRIVILEGE

   Where it is recognized, the qualified First Amendment-based privilege is traced to Branzburg v. Hayes, a Supreme Court decision from 1972 finding that journalists do not have constitutional protection when they refuse to reveal their sources. (36) The facts were colorful. After interviewing a number of people, Paul Branzburg, a reporter, wrote a story about young people synthesizing and using drugs. (37) State prosecutors wanted to know the names of his sources, and on two occasions they subpoenaed him to testify before grand juries. (38) Branzburg refused. (39) Similarly, in the cases of In re Pappas and United States v. Caldwell, decided together with Branzburg, state prosecutors subpoenaed two different reporters, each covering the Black Panther organization, to testify before grand juries. (40) Pappas and Caldwell, like Branzburg, also refused. (41) They all argued that the First Amendment protected them from compelled disclosure of the identity of their sources. The idea was, if reporters were forced to reveal their sources, then people would be reluctant to speak to reporters; the free flow of information would suffer. (42)

   The Supreme Court, in a five-to-four decision written by Justice Byron White, said flatly that a journalist has the same duty as any other citizen to testify when called upon. (43) However, Justice Lewis F. Powell, the fifth vote to reject the privilege on the facts in Branzburg, would not go that far. (44) In a concurring opinion, he left open the possibility that the First Amendment might protect a reporter under other circumstances:

   The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection. (45) Further, the dissent by Justice Potter Stewart outlined in more detail the need for a reporter's privilege and explained how it would work. To begin, he said that a reporter's right to a confidential relationship with his source "stems from the broad societal interest in a full and free flow of information to the public," (46) that "the right to publish is central to the First Amendment and basic to the existence of constitutional democracy," (47) and that the "corollary of the right to publish must be the right to gather news." (48) Then he outlined the three basic...