by Kathleen Valdez
"Congress shall make no law...abridging the freedom of speech or of the press..." (United States
Constitution)
This phrase is from the Constitution of the United States. It sounds straightforward and yet many
journalists and politicians, among others, feel that it not powerful enough to guarantee protection to the
press. They believe that the press should have additional and explicit privileges. They advocate a federal
shield law or, as it is known in it's most recent incarnations, H.R. 2102 (House version) and S. 2035
(Senate Version) The Free Flow of Information Act of 2007.
According to the Congressional Research Service Report for Congress, thirty-one states have enacted
shield laws. These laws vary widely from state to state with the main purposes being to define what a
journalist is and the circumstances under which sources can be kept confidential. State laws do not apply
in cases involving the federal government. State laws are subject to interpretation when a Constitutional
issue such as freedom of the press is raised and has elevated a case to federal court. A federal shield law
would attempt to remedy this.
Does the press need this type of power? Can the press be relied upon to be responsible guardians and
dispensers of the truth? I find myself in the surprising position of saying that they do not. I fully
expected to be in favor of a federal shield law and when I found myself leaning away from it during this
research, I felt uncomfortable. I have come to realize that the free press that I learned about in history
and the papers I read while growing up in the 1960’s and 1970’s doesn’t really exist in the same form in
the United States. Today, the media is all about circulation and viewership which translates into
advertising which means money.
The only case that has reached the U.S. Supreme Court that dealt with protecting confidential sources
is Branzburg v Hayes in 1972. In the majority opinion by Justice Byron White, the court ruled in a 5 – 4
decision that reporters must testify when ordered to do so by the court, saying,
until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal
Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are
asked to create another by interpreting the First Amendment to grant newsmen a testimonial
privilege that other citizens do not enjoy. This we decline to do (Branzburg v Hayes).
The decision was clear until confusion followed in the wake of a concurrence by Justice Lewis
Powell that “reads like a concurrence that slowly mutates into a dissent” according to Stephen Bates,
in his article ‘Getting to the Source’. Powell wrote, "Official harassment of the press undertaken not for
purposes of law enforcement but to disrupt a reporter's relationship with his news sources" might violate
the First Amendment (Branzburg v Hayes).
The idea of “a reporter’s relationship with his news sources” was a wake up call. I have always taken
it for granted that a reporter either knew or was pointed to a source through investigation. I was shocked
to read in the American Journalism Review that there is an organization the purpose of which is to
provide the media with the names of sources. In her article, Uncharted Territory, Rachel Smolkin writes
that the Project on Government Oversight provides “trusted reporters with the names of government
employees and contractors who must remain confidential” (1). When did providing sources to the media
become a business? What happened to the idea that a reporter cultivates her sources? Are we to grant
freedom of the press by proxy?
Some of the most intense and persuasive arguments for a federal shield law come from concerns that
journalists will not be able to get sensitive information unless they can guarantee secrecy to their
sources. During the Watergate investigations, the editors from the Washington Post required that
information be verified by at least two independent sources before they printed a story. This is both
responsible journalism and, because of the threat of litigation, a sound business practice. A source
should not be the only place that a reporter gets information. It should only point in the right direction.
The source should point the reporter to the smoking gun and should not be the smoking gun.
It is not always in the best interest of the public for the press to have and act on sensitive
information. New York Times reporter, Judy Miller illustrates one such case. Miller is probably best
known for spending eighty-five days in jail for contempt for refusing to divulge what she knew in the
exposure of CIA operative Valerie Plame. What is not publicized is that Miller is involved in another
case related to national security. In December 2001, Miller got a tip from a source inside a federal grand
jury regarding an impending raid on two Islamic charities that were known to have ties to terrorist
groups. She and another Times reporter made phone calls to the charities that resulted in alerting them to
the raid and “potentially if not actually nullifying its value and imperiling the law officers carrying it
out” (Schoenfeld). Rather than having a shield law to further protect irresponsible use of grand jury
testimony that is not beneficial to the public, perhaps stricter laws are in order.
The fact is that individuals whose privacy has been violated by information leaked to reporters may
find themselves without access to due process. For example, Steven Hatfill was named in several
newspapers as a person of interest in the investigation of anthrax attacks in 2001. He has subpoenaed
records from eight media outlets as a part of his lawsuit against the federal government. In another
lawsuit, former nuclear physicist Wen Ho Lee has subpoenaed the records of five reporters claiming that
his privacy was violated during an investigation of espionage charges that were subsequently dropped.
Lee believes that a source within the FBI leaked information to the media. In both cases, reporters are
refusing to name their “reliable” sources. Hatfill and Lee also have a right to some protection, a right
that could be denied to them if a federal shield law allowed reporters to keep their sources confidential.
The media should not have both the right to reveal sources nor to keep them confidential as it suits
them. What happens when the media chooses not to keep a source confidential? This happened in a 1982
gubernatorial race in Minnesota when a republican campaign worker solicited and received promises of
protection from four media outlets. Dan Cohen provided public court documents showing that the
democratic candidate had been convicted of petty theft in the distant past. Two newspapers made Cohen
and his questionable motives the story claiming that they had an obligation to the public to reveal the
truth. Cohen sued the papers for breach of contract. In a case that ended up in the U.S. Supreme Court in
1990, the court sidestepped any first amendment issue and ruled that the papers had indeed breached a
contract with Cohen when they revealed him as a source.
Proponents of a federal shield law say that there are situations in which the news media would not be
protected. These would include receiving stolen property, court cases where the information cannot be
gotten by other means, and endangering the national security. These are fairly broad topics and, quite
frankly, they are already extensively covered by current law rendering additional statutes redundant.
One disturbing provision of the proposed law broadens the definition of a journalist to include bloggers
on the internet. This would mean that anyone posting on the web could at least claim they published
information from confidential sources no matter how truthful. Victims of bloggers could face protracted
court proceedings just trying to find the source. There is no burden of truth. The courts could
conceivably become so bogged down with such cases that it might not be practical to pursue them.
The Constitution may seem frustratingly vague to some, but it is a document written to survive and
remind future generations of the original vision. Free speech and freedom of the press cannot be
suppressed. Nor can the free press hold itself separate from the laws that govern us all.
Works Cited
Bates, Stephen. "Getting to the Source." Slate 26 Dec 2003 1-3. 03 July 2007.
Bernstein, Carl, and Bob Woodward. All the President's Men. 2nd ed. New York: Simon & Schuster, 1994
Branzburg v. Hayes, No. 70-85 , SUPREME COURT OF THE UNITED STATES, 408 U.S. 665; 92 S.
Ct. 2646; 33 L. Ed. 2d 626; 1972 U.S. LEXIS 132; 24 Rad. Reg. 2d (P & F) 2125.
Jost, Kenneth. "Free-Press Disputes." CQ Researcher 15(2005): 295-308.
Lening, Carey and Henry Cohen . "Journalists' Privilege to Withhold Information in Judicial and Other
Proceedings: State Shield Statutes." CRS Report for Congress 08 Mar 2005 03 July 2007.
Rothenberg, Elliot C.. "Whose First Amenment?." Defending the First: Commentary on First
Amendment Issues and Cases Edited by Joseph Russomanno. 1st ed. 2005.
Schoenfeld, Gabriel. "Why Journalists Are Not Above the Law." Commentary 123.2 (Feb. 2007): 40-45.
MasterFILE Premier. EBSCO. [St. Louis Community College], [St. Louis], [Mo]. 5 July 2007.
Smolkin, Rachel. "Uncharted Terrain." American Journalism Review October/November 2005(2005) 1-13. 02 July 2007.
Volokh, Eugene. "You Can Blog, But You Can't Hide." The New York Times, December 2, 2004.
Rpt.
in Writing Arguments: A Rhetoric With Readings. John D. Ramage, John C. Bean, and June
Johnson. 7th ed. New York: Longman, 2007.
