Free-Press Disputes -

Free-Press DisputesAre courts blocking the public’s right to know?

Two nationally known reporters face possible jail

sentences for refusing to answer grand jury ques-

tions about their confidential sources in the crimi-

nal probe of the leak of the name of a U.S. intelli-

gence agent. The contempt of court case against Matthew Cooper

of Time and Judith Miller of The New York Times is one of several

similar conflicts between journalists and prosecutors and private

lawyers viewed as less favorable to freedom of the press.

Prosecutors say journalists have the same obligation as anyone

else to give evidence in legal proceedings. But journalists say that

offering confidentiality to sources wishing to remain anonymous is

sometimes necessary to get information about government and

corporate wrongdoing, such as the Abu Ghraib prison abuses and

the Enron accounting-fraud scandal. Meanwhile, media groups are

clashing with the Bush administration over restrictions on govern-

ment information imposed since the 9/11 terrorist attacks.

I

N

S

I

D

E

THE ISSUES ......................295

BACKGROUND ..................302

CHRONOLOGY ..................303

CURRENT SITUATION ..........307

AT ISSUE ..........................309

OUTLOOK ........................311

BIBLIOGRAPHY ..................314

THE NEXT STEP ................315

THISREPORT

New York Times reporter Judith Miller was found incontempt of court on Oct. 7, 2004, for refusing to

reveal confidential sources during a federalinvestigation. Miller, here with Executive Editor

Bill Keller, faces a possible 18 months in jail.

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The CQ Researcher • April 8, 2005 • www.thecqresearcher.comVolume 15, Number 13 • Pages 293-316

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

294 The CQ Researcher

THE ISSUES

295 • Is the government in-creasingly blocking pressaccess to information?• Should judges jail re-porters for refusing to dis-close confidential sources?• Should courts issue “gag”orders in high-profile cases?

BACKGROUND

302 Freedom of the PressThe U.S. began its historywith a strong commitmentto a free press.

304 Press PrivilegesThe Supreme Court enlargedpress protection in the 1960s.

306 Press ComplaintsMedia groups complainthe Bush administration islimiting access to govern-ment information.

CURRENT SITUATION

307 Jail Time?Lawyers are urging a federalappeals court not to jailtwo prominent reporters.

310 Federal ProtectionMedia groups back a federalshield law for reporters andincreased access to records.

OUTLOOK

311 Chilling Effects?The confidentiality disputemay be causing jittersamong some potentialsources for journalists.

SIDEBARS AND GRAPHICS

296 Most States Protect Reporters’ SourcesShield laws have been enactedin 31 states and Washington,D.C.

297 Media Facing Fewer Libel TrialsThe number of cases againstthe media has decreased inthe past 25 years.

300 When Courts Demand Reporters’ SourcesThere are five active federalcases in which reportershave been subpoenaed overtheir confidential records.

303 ChronologyKey events since 1925.

304 Are Bloggers Journalists?There is wide disagreementover whether they merit tradi-tional press protections.

308 Student Journalists FightCampus CensorshipMany face strict oversightfrom high school principalsor college administrators.

309 At IssueShould Congress pass a feder-al shield law for journalists?

FOR FURTHER RESEARCH

313 For More InformationOrganizations to contact.

314 BibliographySelected sources used.

315 The Next StepAdditional articles.

315 Citing The CQ ResearcherSample bibliography formats.

FREE-PRESS DISPUTES

Cover: New York Times reporter Judith Miller talks to the press after being found in contemptin Washington, D.C., on Oct. 7, 2004, for refusing to reveal confidential sources during aninvestigation into the unmasking of covert CIA officer Valerie Plame. Miller, here with ExecutiveEditor Bill Keller, faces a possible 18 months in jail. (Getty Images/Brendan Smialowski)

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Free-Press Disputes

THE ISSUESS omebody usually ends

up in trouble when in-vestigative reporter Jim

Taricani files one of his sig-nature reports on crime forChannel 10, in Providence,R.I. Since January, however,the 30-year broadcast veter-an has been silent — and introuble with the law himself.

Back in February 2001,Taricani aired a leaked FBIvideotape of a bribe to a localofficial — part of an anti-cor-ruption probe that ended withthe conviction of Providence’sformer mayor, Vincent A.“Buddy” Cianci. Taricani wassubpoenaed and told to re-veal the source. When he re-fused, Chief U.S. District JudgeErnest Torres convicted himof criminal contempt of courtin November 2004 and sen-tenced him to six months ofhome confinement.

The judge spared Taricania prison sentence for med-ical reasons — he had aheart transplant several yearsago — but the 56-year-oldreporter cannot leave his house ex-cept for medical visits; can receive vis-itors only four hours a day; and can-not work, use the Internet or givemedia interviews. 1

Taricani is the only U.S. reportercurrently confined for refusing to iden-tify a confidential source. But in Texasin 2001 a novice crime writer whohad been looking into the murder ofa Dallas socialite served 168 days injail after refusing a grand jury sub-poena for her interviews with confi-dential sources. And at least 14 re-porters — including some of thenation’s most respected journalists —face possible jail terms for refusing

federal court orders to disclose theirsources. (See chart, p. 300.)

Journalism groups say the flurry ofsubpoenas — amid ongoing post-9/11access disputes between the newsmedia and the Bush administration —threatens reporters’ ability to gain co-operation from sources wishing to re-main anonymous.

“This is a wholesale assault on themedia’s ability to gather information,”says Lucy Dalglish, executive directorof The Reporters Committee for Free-dom of the Press.

Without such protections, former to-bacco industry scientist and whistle-blower Jeffrey Wigand might never

have revealed anonymously,and famously, to CBS’ “SixtyMinutes” that the tobacco in-dustry not only knew that cig-arettes were addictive andharmful but also had deliber-ately increased their addic-tiveness. Nor would the Enronaccounting fraud or the AbuGhraib prison-abuse scandalshave been exposed, arguesSandra Baron, executive di-rector of the Media Law Re-source Center, in New York.

The reporters in judicial jeop-ardy include two nationallyprominent journalists, MatthewCooper of Time and JudithMiller of The New York Times.They face up to 18 months inprison for defying a grand jurysubpoena in the investigationof the politically charged leakof CIA operative Valerie Plame’sname in summer 2003.

U.S. Attorney PatrickFitzgerald is trying to find outwho, if anyone, violated fed-eral law by disclosing Plame’sidentity. Her husband, formerdiplomat Joseph C. WilsonIV, claims the leak — first putinto print by conservativecolumnist Robert Novak —

amounted to retaliation by the Bushadministration for Wilson’s earlier crit-icism of Bush claims that Iraq wasseeking to obtain nuclear weapons.

Journalists have long used thepromise of confidentiality to pry in-formation from people who, for vari-ous reasons, do not want their namesin print. In 1972, however, the U.S.Supreme Court rejected journalists’ ar-guments that the First Amendment givesthem a privilege to protect confiden-tial sources comparable to such well-established privileges as attorney-client,doctor-patient and priest-penitent. In asignificant concurring opinion in the 5-4Branzburg v. Hayes decision, however,

BY KENNETH JOST

AP P

hoto

/Vic

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oVeteran investigative reporter Jim Taricani of

Providence, R.I., is serving a six-month contempt ofcourt sentence for refusing to reveal who gave him aleaked FBI video. Many journalism groups support

legislation establishing a federal shield law to protectjournalists’ sources, but conservatives and pro-law

enforcement observers generally argue that reportersshould have no special privileges in criminal cases.


Justice Lewis F. Powell Jr. suggestedreporters could claim such a privilegeon a case-by-case basis. 2

Since then, federal courts and manystate courts have generally recognizeda qualified or conditional privilege forreporters. Moreover, 31 states and theDistrict of Columbia have passed so-called shield laws, which generally en-able reporters to get subpoenas thrownout if the information sought is lessimportant than the potential risk tonewsgathering. (See map, above.)

The Plame controversy has triggeredinterest in Congress in establishing afederal shield law. Many journalismgroups support such legislation, butsome journalists worry that a law could

be counterproductive if it defines thereporter’s privilege more narrowly thanexisting court decisions. However,some legal observers — generally withconservative or pro-law enforcementviews — argue that reporters shouldhave no special privileges in criminalcases. (See “At Issue,” p. 309.)

The confidential-source disputeshave flared at a time when the judi-cial climate toward press freedom ismixed, according to journalismgroups and First Amendment experts.Supreme Court decisions on libel andprivacy beginning in the 1960s havegiven the media significant protec-tions against liability in private law-suits. But many state courts and the

Bush administration — particularlyafter the Sept. 11, 2001, terrorist at-tacks — have restricted the press’ ac-cess to government information andsome legal proceedings.

“Overall, it is not a particularly posi-tive time,” says Rodney Smolla, deanof the University of Richmond LawSchool in Virginia and author of severalbooks on First Amendment issues.“There’s very little doctrinal expansionof rights for the press; and, in a num-ber of instances, there’s retreat.”

Charles Davis, executive director ofthe freedom of information program atthe University of Missouri’s School ofJournalism, in Columbia, says that after“tremendous expansions” of press rights

FREE-PRESS DISPUTES

Source: “The News Media & the Law,” Reporters Committee for Freedom of the Press, Winter 2005.

No shield law, no privilege recognized

No shield law, but privilege recognized

Partial shield law

Absolute shield law

Most States Protect Reporters’ SourcesThirty-one states and the District of Columbia have enacted so-called shield laws that permit reporters to protect confidential sources. In many states without such laws, reporters have been granted some privilege to protect their sources through state constitutions, common law or court rules.

N.Y.

OhioNeb.

Texas

Va.

Minn.

Iowa

Mo.

Calif.

Nev.

Ore.

Colo.

Wash.

Idaho

Mont.

Utah

Ariz. N.M.

Wyo.

N.D.

S.D.

Alaska

Okla.Ark.

La.

Ill.

Miss.

Tenn.

Ga.

Hawaii

Conn.

Mass.

R.I.

Maine

Vt.

W.Va.N.J.

Del.Md.

Ala.

Fla.

Wis.Mich.

Ind.Pa.

N.C.

S.C.

N.H.

Kan.Ky.

D.C.

Shield Laws and Privileges for Reporters’ Sources


in the 1970s and ’80s, there has been“some retrenchment” since the 1990s.“On the issue of confidentiality, we’reseeing a revisiting of what we hadthought of as an unassailable right,”says Davis, who also chairs the free-dom of information committee of theSociety of Professional Journalists (SPJ).

Most journalism groups weresharply disappointed in mid-Februarywhen the federal appeals court inWashington upheld contempt cita-tions against Cooper and Miller. 3 Somejournalists and other First Amendmentexperts, however, warn that thePlame case is an unappealing vehiclefor testing the confidential-source issue.They note that federal law makes ita crime under some circumstances todisclose the identity of an intelligenceagent and that the leak did not ad-vance the oft-invoked justification forjournalists’ privilege of disclosing of-ficial wrongdoing.

“The press is picking the wrongfight to fight,” says Geoffrey Stone, aprofessor and former dean of the Uni-versity of Chicago Law School. “Thisis about as bad a case to take to themat as you can imagine.”

Cooper and Miller want all ninejudges on the federal appeals court inWashington to rehear the three-judgepanel’s decision upholding their con-tempt citations. In some respects, Coop-er and Miller seem unlikely subjectsfor the subpoena fight since it wasNovak — quoting “two senior ad-ministration officials” — who first iden-tified Plame as a CIA “operative” in aJuly 14, 2003, syndicated column. 4

Cooper, Time’s White House corre-spondent, helped write a story forTime’s Web site three days later ques-tioning the administration’s motives fordisclosing Plame’s identity. Miller, whocovers intelligence for the Times, neverpublished a story with Plame’s identitybut talked with confidential sources aboutPlame. It has not been revealed whetherNovak has been subpoenaed or ques-tioned in the investigation.

Taricani’s case is also unusual becausehis confidential source acknowledged hisrole three days before Judge Torreshanded down the contempt sentence.Attorney Joseph A. Bevilacqua Jr. ad-mitted giving FBI videotapes to Taricanidespite a court order barring their re-lease. Channel 10 aired the tapes in Feb-ruary 2001. Bevilacqua, who testified in2002 that he had not leaked the tapes,now faces possible contempt, obstruc-tion of justice and perjury charges. 5

As for Taricani, Judge Torres saidhe would consider reducing Taricani’spenalty at the four-month point —April 9 — if he had complied withall restrictions. In late March, officialsat Taricani’s station were so skittishthat they declined to give out any in-formation about his condition.

Earlier, however, the station hadcited the strains on Taricani in explainingthe decision not to appeal the sentence.“The last several years have taken a

tremendous physical and emotional tollon Jim and his family,” the station saidin a Dec. 21 statement, “and he is look-ing forward to getting on with his lifeand getting back to work.” 6

As disputes over confidential sourcescontinue in federal courts, here aresome of the questions being debated:

Is the government increasinglyblocking press access to infor-mation?

Gov. Robert Ehrlich, R-Md., has hada prickly relationship with the news mediaever since he moved into the statehousein January 2003. But the capital presscorps was still surprised in November2004 when Ehrlich ordered all state agen-cies not to speak with two BaltimoreSun reporters who had written criticalarticles about his administration.

The Sun promptly challenged theorder in federal court as a violationof the First Amendment. In February

Media Facing Fewer Libel Trials

The number of libel, privacy and related claims against the media has decreased significantly over the last 25 years (graph at left) while the win rate for media defendants has risen (graph at right). Three-quarters of the claims against the media involved defamation. A total of 527 cases involved media defendants during the 25-year period.

Source: Media Law Resource Center, “2005 Report on Trials and Damages”

0

5

10

15

20

25

30

2000s1990s1980s

Average Number of Trials Per Year Media Victories in Court

0

10

20

30

40

50

60

2000s1990s1980s

35.7%39.1%

54.7%

26.3

17.912.5

Percentage


FREE-PRESS DISPUTES

2005, however, Judge William Quarlesrejected the suit. “A government maylawfully make content-based distinc-tions in the way it provides press ac-cess to information not available to thepublic generally,” Quarles ruled. 7

Quarles’ decision — nowbeing appealed by the news-paper — cites Supreme Courtrulings saying reporters haveno greater right of access togovernment information thanthe general public. But a lead-ing media-law expert strong-ly criticizes both Ehrlich’sorder and the judge’s ruling.

“The decision is justdead wrong,” says Baron,of the Media Law ResourceCenter. “How can any na-tion hold itself up as a modelof democracy and yet allowa chief executive to cut offaccess to those who dis-agree with him?”

Most clashes between thenews media and public offi-cials do not wind up in court,and those that do producemixed results. The Universi-ty of Chicago’s Stone, authorof a recent book on freespeech in wartime, says thepress “has fared reasonablywell in the courts” throughhistory. Still, for every cele-brated press victory — suchas the Supreme Court’s 1971decision permitting The NewYork Times and The Wash-ington Post to publish the se-cret Defense Departmentstudy of the Vietnam Warknown as the Pentagon Pa-pers — there are numeroussmall-scale judicial rulings barring newsmedia access to information.

The number of such clashes has in-creased as a result of Bush administra-tion policies adopted after the Sept. 11,2001, terrorist attacks, according to jour-nalism groups and First Amendment ex-

perts. “Sources are going to dry up, andthe public is not going to be getting thelevel . . . or the quality of informationthat they have been getting in those iso-lated circumstances where [confidential-ity] is appropriate,” Stone says. The gov-

ernment “has been obsessively andunduly secretive” since 9/11.

In the most clearly drawn fight, theadministration imposed what the Re-porters Committee called “unprece-dented secrecy” on the immigrationproceedings against hundreds of peo-

ple — mostly men of Arab and/orMuslim backgrounds — rounded upimmediately after 9/11. The adminis-tration refused to release the names ofthe detainees and later closed the im-migration hearings to the press and

public. News organizationsand others unsuccessfullychallenged both policies. 8

The administration justifiedthe restrictions by saying thatthe information could havehelped terrorists track thecourse of the government’sinvestigations. But pressgroups and other critics saidthe policies were aimed atpreventing scrutiny of the gov-ernment ’s act ions. “Nodoubt, the motives were amix of the two,” Stone says.

At the same time, Attor-ney General John Ashcroftrankled press groups by di-recting government lawyerswhenever possible to defendagency refusals to releaserecords under the federalFreedom of Information Act(FOIA). The Reporters Com-mittee and several other pressgroups complained aboutthe directive.

“This is an administrationthat has an intrinsic belief thatsecrecy is a good thing,” Dalglishsays. “This is policy that is com-ing down from on high.”

Viet Dinh, a professor atGeorgetown University LawCenter in Washington whohelped fashion the post-9/11policies as assistant attorneygeneral, defends the closureof the immigration hearings.

“The judge made the determinationthat if information had gotten out tothe general public, it would havehelped the enemy follow the progressof the investigation,” Dinh says. “I thinkhe made the right decision based onthe facts at the time.”

During the rape trial of basketball star Kobe Bryant, aColorado judge barred news media from publishing

testimony from a closed-door pretrial hearing. Journalistsare concerned that judges have begun prohibiting

publication of information already in the hands of newsorganizations. The charges against Bryant were droppedon Sept. 1, 2004, after the alleged victim refused to testify.

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Richard Samp, chief counsel of theconservative Washington Legal Foun-dation, guardedly agrees but adds thatimmigration proceedings should usu-ally be open. More broadly, he dis-putes the criticism of the administra-tion’s information policies.

“I would deny that this administra-tion has a terrible record of operatingin the dark and that the press is beingcensored,” Samp says. He says thatthere have been “far fewer instancesof censorship” in the Iraq war than inthe Persian Gulf War under the firstPresident Bush and that the press hasbeen given “relatively free access” tothe military tribunal proceedings atGuantanamo Bay for foreign detaineescaptured in the Afghanistan war. 9

White House spokesmen periodical-ly defend the administration againstcharges of limiting access to informa-tion. At the same time, President Bushhas said he rarely reads newspaper sto-ries, preferring to rely on the “objectivesources” on the White House staff. AndBush’s chief of staff, Andrew Card, wasquoted recently as saying of the press,“I don’t believe you have a check-and-balance function.” 10

For his part, the University of Mis-souri’s Davis charges that the Bush ad-ministration is “overtly hostile” to thepress and that the attitude is filteringdown to state and local governments— as in the Ehrlich case.

“We’re seeing government at thestate, local and federal level less will-ing to pay homage to the press andmore willing to take the press on di-rectly,” Davis says. “There seems tobe this tacit recognition, ‘What do weneed the press for? We can just goaround them. We can control the mes-sage a lot better that way.’ ”

But conservative commentator BruceFein, a columnist for The WashingtonTimes, thinks the press exaggerates itsdifficulties. “There is such enormousrespect for the press and its powerand utility in democracy,” says Fein, aJustice Department official under Pres-

ident Ronald Reagan. “There doesn’tseem to be in First Amendment doc-trine any weakening of protections ofthe press.”

Should judges jail reporters forrefusing to disclose confidentialsources?

When he sentenced TV reporterTaricani for contempt of court, JudgeTorres justified his decision with anearly hourlong peroration from thebench. “A reporter should be chilledfrom violating the law in order to geta story,” the judge said, or “from mak-ing ill-advised promises of confiden-tiality in order to encourage a source”to talk. 11

Some evidence indicates popularapproval of that sentiment. In the daysafter Taricani’s sentence, ProvidenceJournal columnist Mark Patinkin re-ported that out of “a few dozen” e-mails he received after criticizing Tor-res’ decision, nearly 70 percent agreedwith the judge. “I am outraged at theway you and the rest of the newsmedia are circling the wagons to de-fend your profession as if it is holyground,” wrote one reader. 12

Journalism groups defend the needto protect confidential sources as animportant component of investigativereporting. “Clamping down on confi-dential sources ignores the role of con-fidentiality in whistle-blowing and in-vestigative reporting, two very importantchecks on governmental power,” saysSPJ’s Davis.

“What [government officials are] say-ing is, ‘Don’t speak to the press,’ ”Davis adds. “The end result is total re-liance on government press releases.”

Current and former prosecutors,however, generally defend question-ing reporters who have informationabout criminal activity if it cannot beobtained in other ways.

“The law is very clear that reportersdo not have an absolute or even aqualified privilege to resist grand jurysubpoenas in criminal investigations,”

Joseph di Genova, a Washington lawyerand former independent counsel, tolda television interviewer after Timereporter Cooper was first held in con-tempt. “A prosecutor who is doing hisor her duty must subpoena reportersif that is the only other source of theinformation available to them.” 13

The Supreme Court’s decision re-jecting a First Amendment privilegecame in three consolidated cases in-volving reporters with The LouisvilleCourier Journal, The New York Timesand a New Bedford, Mass., televisionstation. The Courier Journal reporterhad observed and written about themanufacture of illegal drugs; theother two reporters had attended andwritten about activities of the BlackPanther Party.

All three reporters said they couldnot have obtained their stories with-out promising confidentiality. Jour-nalism groups today cite similar ex-amples in arguing that compelleddisclosure of confidential sources willeventually hurt what they call thepublic’s right to know.

“Sources are going to dry up, andthe public is not going to be gettingthe level of information they’ve beengetting or the quality of informationthat they have been getting in thoseisolated circumstances where confi-dentiality is appropriate,” Dalglish ofthe Reporters Committee says.

Whatever the merits of that gener-al argument, even some journalists ques-tion the claim of confidentiality in thePlame investigation. Stephen Chapman,an editorial board member and colum-nist for the Chicago Tribune, calls theclash over the Cooper and Miller sub-poenas “absolutely the worst case forthe press.”

“We have the same obligation asany citizen has to cooperate with lawenforcement,” Chapman says. “Incases like this, the promise that re-porters give to sources to protect theirconfidentiality should be to do it withinthe limits of the law.”


Other journalists, however, arebacking Cooper and Miller’s refusalto answer questions about confi-

dential sources even while ac-knowledging some discomfort andsome uncertainty about the investi-

gation. “It’s a troubling case, be-cause the facts are so dreadful,” Davissays.

FREE-PRESS DISPUTES

When Courts Demand Reporters’ Sources

Source: The Reporters Committee for Freedom of the Press (www.rcfp.org).

A total of 14 journalists face jail time as part of five active federal cases in which reporters have been subpoenaed to reveal their confidential sources or, in one case, telephone records:

The Valerie Plame investigation (In re: Special Counsel Investigation) — Reporters Matthew Cooper of Time and Judith Miller of The New York Times have been fined and sentenced to jail for contempt of court in connection with an investigation of the leak of CIA operative Plame’s name. Robert Novak published her name in a July 2003 column, attributing the leak to “senior administration officials,” who reportedly sought retaliation against her husband, former diplomat Joseph C. Wilson IV, for criticism of Bush administration Iraq policies. Patrick Fitzgerald, U.S. attorney in Chicago, sought to question five reporters about the leak in spring and summer 2004; three provided limited testimony and are not under subpoena.

In October Chief U.S. District Court Judge Thomas Hogan held Miller and Cooper in contempt for declining to fully answer prosecutors’ questions. (Cooper had provided limited testimony in August.) Hogan fined the reporters $1,000 a day and ordered them jailed until they testify. The sentences were stayed pending appeal. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the contempt citations on Feb. 15, 2005 (In re: Grand Jury Subpoena, 04-3138). Cooper and Miller have asked the full nine-member court to reconsider the decision.

Hatfill v. Ashcroft — Steven Hatfill, a former Army bioterrorism expert, has obtained subpoenas against eight news organizations and one reporter in connection with his Privacy Act suit against the government, which he contends leaked his name as a “person of interest” in the investigation of a series of anthrax attacks in 2001. The subpoenas were issued in December 2004 by U.S. District Judge Reggie B. Walton in Washington to ABC, CBS, NBC, The Associated Press (AP), Gannett Newspapers, Newsweek, The Washington Post, Los Angeles Times and former Baltimore Sun reporter Scott Shane. Eight of the subpoenas are being contested in Washington; the Times is contesting its subpoena in Los Angeles.

Lee v. Department of Justice — Wen Ho Lee, a former nuclear physicist at the Los Alamos National Laboratory in New Mexico, obtained subpoenas against five reporters in connection with his Privacy Act suit against the government for disclosures about him while he was facing espionage charges — later dropped. The subpoenas were issued in October 2003 to James Risen and Jeff Gerth of The New York Times; Bob Drogin of the Los Angeles Times; Pierre Thomas, formerly of CNN and now with ABC; and Josef Hebert of the AP; and, in early 2004, to Walter Pincus of The Washington Post. All of the reporters but Pincus were found in contempt of court in August 2004 by U.S. District Judge Thomas Penfield Jackson in Washington for refusing to reveal their confidential sources and fined $500 per day; the fines were stayed pending appeals. Pincus is expected to face the same penalty.

Global Relief Foundation grand jury investigation — The U.S. attorney’s office in Chicago has subpoenaed the telephone records of New York Times reporters Judith Miller and Philip Shenon in connection with the leak of information about a planned FBI raid on the foundation, an Islamic charity suspected of funding terrorism. Charity representatives said they were tipped off to the Dec. 14, 2001, raid by reporters calling for comment. U.S. District Judge Robert Sweet in New York City ruled on Feb. 25, 2005, that the telephone records are covered by a reporter’s privilege (The New York Times Co. v. Gonzales, 04-Civ. 7677).

BALCO grand jury investigation — Federal prosecutors asked five San Francisco Bay-area reporters in midsummer 2004 to testify before a grand jury about confidential sources they used in covering alleged illegal steroid distribution by BALCO — Bay Area Laboratory Cooperative — a nutritional-supplement company. The reporters — Henry Lee, Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle and Elliot Almond and Sean Webby of the San Jose Mercury News — all declined; no subpoenas followed. Later, prosecutors asked for a Justice Department probe of ongoing leaks after publication in December of excerpts from sealed grand jury testimony by baseball players Barry Bonds and Jason Giambi.Bonds

Bin Laden

Lee

Hatfill

Cooper

Miller


“I’m not convinced that a law wasbroken in this situation,” Dalglish says,noting that the federal law prohibitsdisclosure of a covert agent’s identityonly under specified circumstances.“I’m not sure how productive it is togo after Cooper and Miller,” she adds.

For his part, Fein sharply criticizesCooper and Miller. “It seems to meexceptionally obtuse for the two re-porters to suggest that they are fallingon their swords to protect the pub-lic’s right to know,” Fein says. “Youhave the reporters helping to concealfrom the public what it has a right toknow, namely, whether someone inthe government committed a crime.”

In other cases, journalism groups saya prosecutor’s burden in subpoenainga reporter should be very high. Dalglish,for example, says a reporter should beable to claim confidentiality unless theinformation sought would prevent seri-ous bodily harm or a life from beingthreatened. “I haven’t been presentedwith a set of circumstances that wouldoverride that privilege,” she says.

Fein says the government shouldtake care before deciding to subpoe-na reporters, but he says news orga-nizations also should show more flex-ibility in such cases.

“The press does a disservice to it-self in being so rigid in its insistencethat there are no circumstances [in which]it can reveal a confidential source,” hesays. “When the press makes a claimfor an absolute privilege, it loses whatneeds to be a very cherished reverencefor its job of checking the governmentand informing the public.”

Should courts issue “gag” ordersto limit publicity in high-profilecases?

When a Jacksonville, Fla., televisionreporter quoted from a secret grandjury transcript in a high-profile mur-der case in July 2004, the judge threat-ened his stations with criminal prose-cution or contempt of court. Sevenmonths later, the judge’s order is still

on the books, even though the tran-script is now public record and thereporter had obtained his copy fromthe state prosecutor in the case. 14

The judge’s order — now being chal-lenged by the stations before the U.S.Supreme Court — is an extreme ex-ample of the increasing number of freepress-fair trial disputes in high-profilecases. In many instances, judges limitout-of-court comments by attorneys or— as in the ongoing Michael Jacksonsexual-molestation trial — even witnesses.Courts also are increasingly using “anony-mous” juries to shield jurors from post-trial questioning by news media.

But journalists are especially con-cerned that a small number of judgeshave begun prohibiting publication ofinformation already in the hands ofnews organizations or — as in the Jack-sonville case — to threaten legal sanc-tions for doing so. For example, theColorado judge in the rape case of bas-ketball star Kobe Bryant barred newsmedia from publishing testimony froma closed-door pretrial hearing after acourt clerk accidentally e-mailed thetranscript to several news organiza-tions. The Colorado Supreme Court up-held the order, but the trial judge even-tually released an edited transcript. * 15

“We are seeing a lot more gag or-ders in all levels of courts,” Dalglishsays. “We see judges periodically kick-ing reporters out of [pretrial proceed-ings]. We are seeing prior restraints.”

“The press has to be vigilant aboutthe possibility of prior restraints,” saysJay Wright, a professor at SyracuseUniversity’s Newhouse School of Com-munications and co-author of a lead-ing media law casebook. “It never failsto amaze me how we can hear everyyear about prior restraints in some formor another.”

A prominent criminal defense lawyernotes, however, that judges have very

little leeway in prohibiting the pressfrom publishing information. “Gag or-ders against the press traditionally haveto be very, very narrow,” says NancyHollander, an Albuquerque, N.M., lawyerand one-time president of the NationalAssociation of Criminal Defense Lawyers.“Courts can gag the lawyers far moreeasily than the courts can gag the pressonce the press finds out information.”

The Supreme Court in 1976 unani-mously struck down an effort by a Ne-braska judge to bar the press from pub-lishing accounts of open-court proceedingsin a high-profile murder trial. In the mainopinion, however, Chief Justice WarrenE. Burger left open the possibility of up-holding a prior restraint under some, un-specified circumstances. Fourteen yearslater, however, the court declined to re-view a federal appeals court decisionbarring CNN from broadcasting excerptsof a tape recording between formerPanamanian President Manuel Noriegaand lawyers representing him in a drug-conspiracy case in Florida. 16

Prosecutors and defense lawyers some-times have a common interest in limit-ing publicity about criminal trials. De-fense lawyers fear the potential influenceof media coverage on jurors while pros-ecutors worry it could jeopardize anyconviction on appeal. “A gag order cer-tainly might be justified to the extentthat the judge believes that if the testi-mony leaks out it would meaningfullyinterfere with the right of the defendantto get a fair trial,” says Alfredo Garcia,a law professor at St. Thomas School ofLaw in Miami who has been both aprosecutor and criminal defense lawyer.

In the Jacksonville case, attorneyGeorge Gabel, representing two localTV stations, says Judge Robert Mathisignored state law when he tried to pre-vent publication of the grand jury tran-script in the murder trial of Justin Bar-ber. The transcript of Barber’s grand jurytestimony — denying that he had killedhis wife — became public record underFlorida law when prosecutors turned itover to the defense, according to Gabel.

* The charges against Bryant were droppedon Sept. 1, 2004, after the alleged victim re-fused to testify.


In addition, the prosecutor in the casegave a copy of the transcript to the sta-tions’ reporter, Daryl Tardy. Yet Mathison July 30, 2004, prohibited the stationsfrom airing information from the tran-script on the basis of another Floridalaw mandating secrecy of grand jury pro-ceedings. Ten days later, Mathis speci-fied that the station would be subject toprosecution or criminal contempt for re-vealing contents of the transcript.

“There are no reasons for secrecy,”Gabel says. In any event, the lawyercontinues, “Where the news media re-ceive information lawfully — even ifit’s stolen — the press can’t be re-strained from publishing it.”

“It’s healthy for the press to be veryvigilant about these things,” says theUniversity of Chicago’s Stone, “be-cause if it isn’t made a big issue, thenthe temptation to [subpoena reporters]comes more often.”

BACKGROUNDFreedom of the Press

T he United States began its histo-ry with an already established tra-

dition of a robust, even rambunctiouspress and a strong but inchoate com-mitment to press freedom enshrinedin the Bill of Rights and in state con-stitutional provisions. 17

Despite the First Amendment’s guar-antee of freedom of the press, courtshave sometimes served as the govern-ment’s instrument for restraining thepress. Over time, however, courts havestrengthened press protections and, toa lesser extent, interpreted the FirstAmendment as safeguarding press ac-cess to some government informationand proceedings.

The press played an important rolein the American Colonies’ fight againstBritish authorities and eventually for in-

dependence from Britain. Early in thestruggle, a legal battle between NewYork’s royal governor, William Cosby,and an opposition newspaper helpedgive birth to a distinctively American viewof freedom of the press. In 1735 Cosbyobtained an indictment for seditious libelagainst John Peter Zenger, who printed(but did not write or edit) The WeeklyJournal, in New York. In defendingZenger, attorney Andrew Hamilton suc-cessfully argued for an acquittal by usingtruth as a defense — contrary to Eng-lish law. Although jury verdicts do notestablish binding precedent, similar pros-ecutions nonetheless “petered out” afterthe case, according to the prominent con-stitutional historian Leonard Levy. 18

As drafted in 1787 and ratified a yearlater, the Constitution included no pro-tection for freedom of the press or otherindividual rights — an omission criticizedby opponents and remedied by theadoption of the Bill of Rights. As origi-nally drafted by James Madison, the FirstAmendment would have prohibited ei-ther Congress or the states from enact-ing any law to abridge “the freedom ofspeech, or of the press.” The states weredropped from the final language. Levyargues that the drafting history and thedebate in Congress give few clues aboutwhether the Framers intended simply toprohibit prior government censorship oralso to bar subsequent punishment for“seditious” publications.

A decade later, the Federalist-controlledCongress found the First Amendment nobarrier to passing the notorious SeditionAct of 1798, which made it a crime topublish “any false, scandalous, and ma-licious” writing about the president, Con-gress or the U.S. government. 19 The lawwas ostensibly designed to strengthenthe government in the looming conflictwith France but was aimed at and usedagainst the Federalists’ Republican op-ponents. Ten people were convictedunder the act, including at least threejournalists. Supreme Court justices, sittingas trial judges, refused to find the lawunconstitutional, but the issue never

reached the full court; the act expired inMarch 1801.

The Civil War provided the next oc-casion for the federal government tomove against journalists. Early in thewar, the government barred three pro-secessionist newspapers in Marylandfrom being distributed via the U.S. mailand later had their editors arrested. Byone estimate, some 300 Democraticnewspapers were suspended for at leasta brief period — including papers insuch major cities as Chicago, Philadel-phia and St. Louis — typically for ex-pressing anti-war or anti-administrationviews. In his account, however, Pro-fessor Stone depicts most of the actionsas initiatives by Union generals in thefield, not by President Lincoln himself,whom he credits with “an admirablerespect for free expression — evenwhen he was the target of attack.” 20

A half-century later, World War I pro-duced more thoroughgoing repressionof dissent, though the government’sactions were aimed primarily at radicalactivists and pamphleteers and not themainstream press. At President WoodrowWilson’s urging, Congress passed twolaws allowing the government to pun-ish anti-war expression. The EspionageAct of 1917 made it a crime to promoteinsubordination in the military or to ob-struct recruitment. The act also autho-rized the postmaster general to bar suchpublications from the mails, but signifi-cantly Congress rejected a provision toauthorize government censorship. Ayear later, Congress passed the SeditionAct of 1918; broader than the 1798 law,it criminalized criticism of the U.S. gov-ernment, the Constitution or the military.

Although the new Sedition Act waslittle used before the war ended, theEspionage Act was widely invoked tobar radical materials from the mailsand prosecute anti-war activists. Withthe war’s end, the Supreme Court beganto receive appeals stemming from someof those convictions as well as ap-peals of convictions under state laws

FREE-PRESS DISPUTES

Continued on p. 304


ChronologyBefore 1900Congress, but not states, barredunder First Amendment fromabridging freedom of the press;few court rulings to interpretprovision.

•

Early 1900sSupreme Court restricts freepress and speech rights duringWorld War I; later, court extendsFirst Amendment rights to states,limits “prior restraints.”

1925Supreme Court says First Amend-ment bars states from violatingfreedom of speech.

1931Supreme Court says states cannotcensor press except under limitedcircumstances (Near v. Minnesota).

•

1960s-1980sSupreme Court gives pressmajor victory by limiting libelsuits by public officials, publicfigures . . . Court later rebuffseffort to establish reporter’sprivilege to protect confidentialsources, but many states passreporter shield laws in response.

1964In New York Times v. Sullivan,Supreme Court establishes consti-tutional protections against libelsuits by public officials; threeyears later, rule expanded to suitsby public figures.

1966Congress passes Freedom of Infor-mation Act (FOIA) guaranteeing

access to federal agency records,subject to various exceptions; overtime, many states and municipalitiesenact similar laws.

1971Government’s effort to block pub-lication of Pentagon Papers rejectedby Supreme Court.

1972Supreme Court, in 5-4 ruling, rejectsefforts by three reporters to avoidcontempt for defying grand jurysubpoenas to disclose confidentialsources; Justice Powell’s concurringopinion seen by some as backingreporter’s privilege in some cases(Branzburg v. Hayes).

1974Supreme Court gives press partialvictory with ruling to raise hurdlesfor libel suits by private figures.

1978Supreme Court refuses to recog-nize First Amendment privilegeagainst newsroom searches.

1980First Amendment gives public andpress right to attend criminal trialsexcept under limited circumstances,Supreme Court rules (RichmondNewspapers v. Virginia); later rulingssay closure must be narrowly tai-lored to serve overriding interest,and no alternatives are possible.

1989Supreme Court gives media protec-tion against privacy suits by barringliability for publishing informationlawfully obtained from government.

•

2000s Free-press dis-putes proliferate after accessrestrictions are imposed follow-

ing 9/11; court disputes overconfidential sources increase.

2001Vice President Cheney limits accessto meetings, records of energy taskforce . . . Immigration judge closeshearings for people rounded upafter Sept. 11 terrorist attacks . . .Attorney General John Ashcrofttells federal agencies to take stricterapproach toward FOIA requests.

2003Supreme Court won’t hear challengeto immigration hearings closure . . .Justice Department opens probe ofleak of name of CIA operative Va-lerie Plame after publication in July;U.S. Attorney Patrick Fitzgeraldnamed in December as specialcounsel for case.

2004Several reporters subpoenaed in thePlame case; Matthew Cooper ofTime and Judith Miller of The NewYork Times decline to answer ques-tions about confidential sources andare held in contempt of court in Oc-tober; fines and jail sentences stayedpending appeal . . . Five reportersheld in contempt in August for defy-ing subpoena in privacy suit by nu-clear scientist Wen Ho Lee . . .Rhode Island federal judge in No-vember holds TV reporter JamesTaricani in contempt for refusing toidentify confidential source; Taricanisentenced to six months’ homeconfinement in December. . . .Federal judge in Washington issuessubpoenas to news organizations,journalists in privacy suit by bioter-rorism expert Steven Hatfill; journalistsfile challenges.

2005Federal appeals court upholds con-tempt citations against Cooper,Miller; lawyers seek rehearing, vowSupreme Court appeal if necessary.


against political dissidents. Until then,the court had had scant opportunityto define the scope of the First Amend-ment. But it began to lay the foun-dations of modern free-speech andfree-press law in the 1920s and ’30s.

Two cases in particular helped createthe basis for a more extensive protectionfor freedom of the press. In Gitlow v.New York (1925), the court ruled thatthe First Amendment applies to boththe states and the federal government.The decision nonetheless upheld theconviction of a radical journalist underNew York’s Criminal Anarchy Act. Sixyears later, in Near v. Minnesota (1931),the court struck down a state law al-lowing officials to prohibit publicationof “malicious, scandalous or defamatory”newspapers or magazines. Writing forthe 5-4 majority, Chief Justice Charles

Evans Hughes said prior restraint againstthe press could be justified only underlimited circumstances, such as wartimemilitary information, obscenity or in-citement to violence or the overthrowof the government. 21

Press Privileges

T he Supreme Court substantially en-larged press protections with land-

mark decisions on libel, privacy andcourtroom access between the 1960sand ’80s. At the same time, however, itrebuffed press efforts to gain privilegesagainst compelled disclosure of sourcesor newsroom searches. Meanwhile,Congress and many states passed free-dom of information and open-meetingslaws that guaranteed the public and thepress access to more government records

and proceedings. The web of statutoryand constitutional provisions gave thepress valuable tools for gathering newsand fairly strong protections against themost common forms of private lawsuits.

In the first and most important ofthe rulings, the high court gave the newsmedia an all-but-impenetrable shieldagainst the financial threat of libel suitsby public officials. The court’s landmarkruling in New York Times Co. v. Sulli-van (1964) held that a public officialcould recover in a libel suit only byproving “actual malice” — that is, thatthe news organization published a defam-atory statement knowing that it was falseor with reckless disregard of its truth orfalsity. 22 The ruling dismissed a$500,000 award won by an Alabamapolice commissioner for the Times’ pub-lication of an advertisement by a civil-rights group that included several in-

FREE-PRESS DISPUTES

Continued from p. 302

Whether posting breaking news or news about thebreak-up of their latest relationship, bloggers sud-denly seem to be everywhere.

Loosely defined as online diaries, the esitmated 8 millionblogs saturating the online universe include everything from per-sonal rants to serious reporting. In fact, bloggers have becomeso ubiquitous they now have their own segment on CNN’s “In-side Politics,” and major research organizations like the Brook-ings Institution invite them to participate in panel discussions.

The innovative way bloggers disseminate information — con-stant updates, conversational tones and heavy doses of opinion— have The Washington Post and the Chicago Tribune taking no-tice: The front “pages” of their Web sites now link to various blogs.

Despite the deluge of mainstream media attention, contro-versy over bloggers’ use of confidential sources has raised afundamental question: Are bloggers true journalists or just over-caffeinated computer jockeys with attitude?

For instance, in a California case being widely watched, AppleComputer contends that three blogger sites — Thinksecret.com,Appleinside.com and Powerpage.org — should disclose theirsources of leaked company secrets. The sites say California’sshield law and the Constitution’s First Amendment give them theprivilege to protect the identities of their confidential sources.

Since blogs are such a new and relatively unstudied media phe-nomenon, no one agrees on whether bloggers merit the same pro-tections enjoyed by mainstream journalists. No court has set sucha precedent, and the issue is confused by the wide variety of blogs.

While bloggers can take credit for discovering the information thattook down the careers of both CBS’s Dan Rather and CNN’s chiefnews executive Eason Jordan, most of their colleagues seem to beposting mundane items about their own lives with no news value.

“The question should not be whether [all] bloggers are jour-nalists, but which bloggers are journalists?” says Kurt Opsahl,a staff attorney with the Electronic Frontier Foundation, whichrepresents two of the Web sites involved in the Apple case.“The medium of expression should not be the determinate ofwhether or not you’re a journalist. What makes journalism jour-nalism is not the format but the content, and my clients havebeen publishing daily news, feature stories and the latest hap-pening about Apple products for years,” Opsahl says.

A California Superior Court judge sidestepped the question,ruling in March 2005 that the state’s shield law did not protectanyone — journalist or not — who disseminates “stolen prop-erty.” However, the question will undoubtedly come up in thefoundation’s appeal, Opsahl says.

The judge misapplied the test used to determine whenCalifornia’s constitutional reporter’s privilege can be overcome,Opsahl says, insisting that the question of whether bloggersare reporters is still at the heart of the case. “Apple wouldnever go after a mainstream media organization in the sameway,” he adds.

Garrett Graff of FishbowlDC.com recently became the firstblogger to receive White House press credentials and consid-ers his work journalism. He agrees that the material published

Are Bloggers Journalists?


consequential inaccuracies about policebehavior against demonstrators. The courtlater extended the Times v. Sullivan ruleto libel suits by public figures who werenot officials and created less stringentprotections against suits filed by privateindividuals. 23

News organizations sought an anal-ogous legal privilege to limit civil lia-bility for invasions of privacy for pub-lishing truthful information, howeverpersonally embarrassing. The SupremeCourt refused to go that far, but in twosignificant decisions it barred liability forpublishing information lawfully ob-tained from government sources. In onecase, the court in 1975 threw out a pri-vacy suit by the family of a rape-mur-der victim after a local television stationobtained the victim’s name from courtrecords. In 1989, the court similarlyblocked a rape victim’s suit after a news-

paper reporter published her name afterit was mistakenly released by the localsheriff’s office. The high court steeredclear of privacy-invasion suits involvingnon-official information, but plaintiffsthrough the 1980s generally had onlylimited success in lower courts. 24

The Supreme Court gave the newsmedia a less qualified victory in 1980with a decision recognizing a right ofaccess for the press and public to crim-inal trials — except in extraordinary cir-cumstances. The ruling in RichmondNewspapers, Inc. v. Virginia came aftera handful of courts in various states hadclosed pretrial hearings or in a few casesactual trials in an attempt to protect de-fendants from prejudicial publicity. Twosubsequent decisions, extending the rightof access to jury selection and prelimi-nary hearings, effectively established arule that criminal proceedings can be

closed only if narrowly tailored to servean overriding interest that cannot beprotected by some alternative step. 25

The libel, privacy and courtroom ac-cess rulings all involved issues that jour-nalists confronted on a regular basis. Thenews media’s most dramatic victory inthe period, however, came in an all-but-unique setting: the government’s effortin 1971 to block The New York Timesand later The Washington Post from pub-lishing the Pentagon Papers. PresidentRichard M. Nixon instructed the JusticeDepartment to block stories on the re-port, leaked to the newspapers by Pen-tagon-consultant-turned-antiwar-activistDaniel Ellsberg. Lower courts temporar-ily restrained the publications, but theSupreme Court — citing Near v. Min-nesota — voted 6-3 that the governmenthad failed to carry the “heavy burden”needed to justify an injunction. 26

on the Web sites involved in theApple case is journalism worthy ofprotection because the sites are “de-signed to report, break and dissemi-nate news.” But he says the work ofthose bloggers is more the exceptionthan the rule.

“There are a small number — maybeseveral thousand of the about 8 mil-lion bloggers — who would considerthemselves journalists, but the vast ma-jority of bloggers would not considertheir blogs journalism,” Graff says.

“What I do on Wonkette is notjournalism,” says Ana Marie Cox ofher “gossipy, raunchy and potty-mouthed” blog. 1 But that does notmean that all blogs are without jour-nalistic merit, she adds. “If bloggersare presenting their work as reporting, then we judge it bythe standards of reporting. And if they present it as com-mentary and analysis and snarkiness, then there are fewerstandards to go by.”

Lucy Dalglish, executive director of The Reporters Commit-tee for Freedom of the Press, in Arlington, Va., agrees. Her or-ganization does not think anybody with a computer can callhimself or herself a journalist. “That’s not journalism,” she says,

of those posting musings or family in-formation on the Web.

Two bills pending in Congress pro-pose a federal shield law for reporters.One, sponsored by Sen. Christopher Dodd,D-Conn., covers bloggers, while the other— sponsored by Rep. Mike Pence, R-Ind.,and Sen. Richard Lugar, R-Ind. — doesnot. Dalglish says a shield law that doesnot include bloggers would be “unfortu-nate, but I would probably support it.”

Los Angles Times media columnist DavidShaw believes extending any federal shieldlaw to bloggers would harm journalismas a whole. “If the courts allow every Tom,Dick and Matt who wants to call himselfa journalist to invoke the privilege to pro-tect confidential sources, the public willbecome even less trusting than it already

is of all journalists,” Shaw wrote. “That would damage societyas much as it would the media.” 2

— Kate Templin

1 Julie Bosman, “First With the Scoop, if Not the Truth,” The New York Times,April 16, 2004, Sect. 9, p. 10.2 David Shaw, “Do Bloggers Deserve Basic Journalistic Protections?” LosAngeles Times, March 27, 2005, p. E14.

Ana Marie Cox of Wonkette

Court

esy

Ana

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ie C

ox


Against these news-media victories,the Branzburg decision stood as themost important setback for journalists.For the majority, Justice Byron R. Whiterejected warnings from news organiza-tions that refusing to recognize a re-porter’s privilege wouldbe “a serious obstacle toeither the developmentor retention of confiden-tial news sources by thepress.” Four years later,the court similarly ruledthat news organizationshave no right to preventpolice from searchingnewsrooms for evidence— in the specific case,photographs by a col-lege newspaper of a stu-dent demonstration. Andin the same year the fed-eral appeals court inWashington, D.C., al-lowed the governmentto subpoena reporters’telephone records despitethe possible intrusion onconfidentiality. 27

Congress and statelegislatures softened theeffects of the adverse rul-ings with some legislativerelief. State shield lawsgave journalists qualifiedprivileges to resist disclo-sure of confidentialsources. Congress did notpass a comparable feder-al law, but the Justice Department adopt-ed guidelines that ostensibly limited sub-poenas to reporters for confidentialsources. And Congress in 1980 passed alaw prohibiting newsroom searches byfederal authorities unless journalists werethemselves suspected of crimes.

In addition, both Congress and thestates had been passing laws since themid-1960s to provide access to gov-ernment records and proceedings. Thefreedom of information acts and so-called government-in-the-sunshine laws

typically included various exceptions,which courts — including the SupremeCourt — construed narrowly in somecases and more broadly in others. Still,by the end of the 1970s governmentsat all levels generally operated under

statutory provisions that gave journal-ists and the public at large a presumptiveright of access to government infor-mation and meetings.

Press Complaints

A lmost as soon as he was inaugu-rated, President Bush came under

fire from media groups complaining thathis administration was limiting press ac-cess to government information. The

criticism intensified after sweeping re-strictions on press access were institut-ed following the Sept. 11, 2001, terror-ist attacks, but the policies survived legalchallenges. Frustrated by their lack ofsuccess, journalist groups and others said

the administration’s policieswere contributing to an anti-press climate at all levels ofgovernment. The complaintsgrew in 2004 with the flur-ry of cases involving effortsto subpoena reporters whoinsisted on protecting theirconfidential sources.

From the start of his pres-idency in January 2001,Bush minimized the num-ber of full-dress White Housenews conferences, holdingonly three by one count inhis first seven months in of-fice. 28 With little public no-tice, he also used his powerunder the PresidentialRecords Act to delay releaseof President Reagan’s per-sonal papers. In a higher-profile dispute, Vice Presi-dent Dick Cheney blockedaccess to a high-level taskforce on energy policy cre-ated in spring 2001. Thegroup met in secret and re-fused to release even thenames of industry execu-tives who participated. Alsoin 2001, the Justice Depart-ment rankled press advocates

in August by subpoenaing the tele-phone records of a reporter covering acorruption investigation of DemocraticNew Jersey Sen. Robert Torricelli. 29

Shortly after the Sept. 11 attacks, theadministration began imposing broadpress restrictions. In an unannouncedorder on Sept. 21, Chief ImmigrationJudge Michael Creppy of the Justice De-partment barred access to immigrationhearings for the hundreds of individu-als rounded up for alleged immigrationviolations following the attacks. The

FREE-PRESS DISPUTES

Texas writer Vanessa Leggett spent a record 168 days in jail afterrefusing a grand jury subpoena to give federal authorities her

notes of interviews with confidential sources during theinvestigation of the 1997 murder of Dallas socialite DorisAngleton. Leggett was released from jail on Jan. 4, 2002.

Get

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order barred releasing even the namesof those detained, mostly men of Arabor Muslim backgrounds. 30

The Justice Department justified theorder by saying that terrorists could usethe names or information to track thecourse of the investigation of the at-tacks. News organizations challenged theclosures in courts in Michigan and NewJersey, largely on First Amendmentgrounds. Separately, a public-interestgroup sued in federal court in Wash-ington seeking the names of the de-tainees under the Freedom of Informa-tion Act. News groups won in theMichigan case but lost both the NewJersey case and the FOIA case in Wash-ington. The Supreme Court in 2003 de-clined to take up the issues. 31

Meanwhile, Attorney General Ashcroftin October 2001 directed governmentagencies to take a more skeptical viewof FOI requests. The memo told agen-cies to “carefully consider” reasons forwithholding government records andpromised to defend any decisions un-less they were “without sound legalbasis.” The memo reversed a Clintonadministration policy that called for re-leasing government records unless dis-closure would be “harmful.” 32

Against this seemingly unfavorableclimate, the assorted reporter subpoe-na disputes that emerged in 2003 and2004 engendered a sense of fear andforeboding among many journalismgroups and some First Amendment ex-perts. The cases were widely separat-ed by geography and subject matter,but together they left many journalistsfearing that courts were far too will-ing to let either the government orprivate parties put reporters in the un-comfortable position of decidingwhether to disclose confidential sourcesor go to jail for refusing to do so.

In the most significant case, specialprosecutor Fitzgerald in early 2004 begandemanding testimony from five na-tionally prominent reporters in his in-vestigation of the leak of Plame’s nameto columnist Novak. Three of the re-

porters — Tim Russert of NBC andGlenn Kessler and Walter Pincus of ThePost — provided limited testimony thatsatisfied Fitzgerald, but he went for-ward with subpoenas for Cooper andMiller. Chief U.S. District Judge ThomasHogan held Miller and Cooper in con-tempt of court on Oct. 7 and Oct. 13,respectively; fined them $1,000 per day;and ordered them jailed until they tes-tified. The fines and sentences werestayed pending appeal.

Meanwhile, Fitzgerald was also sub-poenaing telephone records for Millerand her Times colleague Philip Shenonin an investigation by a grand jury inChicago of a leak about a planned FBIraid on the Global Relief Foundation,an Islamic charity suspected of fundingterrorism. Federal prosecutors also askedfive San Francisco-area reporters in Au-gust 2004 to disclose confidential sourcesthey used in covering the so-calledBALCO investigation of allegedly illegalsteroid distribution by a San Franciscolab. The leak investigation remains open,but no subpoenas had been issued asof the end of March.

In addition, two former governmentscientists obtained subpoenas for jour-nalists in their Privacy Act suits againstthe government for leaks related toofficial investigations directed at them.Wen Ho Lee, a nuclear physicist atLos Alamos National Laboratory in NewMexico, sued after the governmentdropped espionage charges against him.A federal judge in Washington heldfive reporters in contempt on Aug. 18,2004, for refusing to reveal their con-fidential sources.

Meanwhile, former Army bioterror-ism expert Steven Hatfill obtained sub-poenas against eight news organiza-tions and one reporter after news storiesidentified him as a “person of inter-est” in the government’s investigationof anthrax attacks in 2001 that killedfive people. As of March 2005, thesubpoenas were being contested infederal courts in Washington and LosAngeles.

CURRENTSITUATION

Jail Time?

R eporters Cooper and Miller arecontinuing to work on high-pro-

file news stories while their lawyers,including prominent First Amendmentexpert Floyd Abrams, are urging thefederal appeals court in Washingtonto overturn a decision that could sendthem to jail for up to 18 months forrefusing to reveal confidential sources.

Miller, a 28-year Times veteran, hasbeen immersed in covering the Unit-ed Nations’ “food for oil” scandal. Coop-er, Time’s White House correspondent,has contributed reporting to a rangeof diplomatic and political stories, in-cluding President Bush’s appointmentof former U.S. representative to theU.N. John Negroponte as the first di-rector of national intelligence.

Cooper and Miller strongly defendthe importance of confidentiality andsay they will go to jail rather than dis-close their sources to the grand jury in-vestigating the leak of CIA operativePlame’s identity. “People with informa-tion about waste, fraud, abuses, dis-senting assessments and yes, even gripes,must feel that we will protect them ifthey trust us with sensitive information,”Miller told Time in February. “That’s whyI cannot disclose their identities.” 33

Those concerns failed to sway JudgeHogan, who held the reporters in con-tempt in October 2004, or the three-judge appeals court panel that heardthe case two months later. In separateopinions issued on Feb. 15, the threejudges all upheld the contempt cita-tions. Under the federal civil contemptof court statute, Cooper and Miller couldbe jailed up to 18 months unless theycomply with the subpoena.


FREE-PRESS DISPUTES

Significantly, two of the judges —David Sentelle and Karen Henderson —specifically held that the First Amend-ment creates no privilege for reporters

in regard to grand jury investigations.That holding challenges the prevailingview among media attorneys that theSupreme Court’s 1972 Branzburg deci-

sion recognizes a limited privilege eventhough the ruling upheld the reporters’subpoenas being challenged in the case.

Continued on p. 310

As editors of their college newspaper, Margaret Hostyand Jeni Porche made a lot of waves with critical in-vestigative articles about the faculty and administration

at Governors State University, outside Chicago. When Dean ofStudents Patricia Carter decided in October 2000 that all futureissues would require administration approval before publica-tion, the students suspended publication.

The dispute has left the 9,000-student university without acampus paper for more than four years. And it triggered amajor legal battle over college press freedom now awaiting adecision from the federal appeals court in Chicago. 1

The case of Hosty v. Carter illustrates the sometimes con-tentious and often unsettled legal environment for high schooland college journalists today. Student reporters and editors haveto deal with legal issues comparable to those facing mainstreamjournalists, such as getting access to campus crime reports. Butthey also have to deal with oversight — or more — from highschool principals or college administrators who may wieldpower over newspaper or broadcast budgets as well as the in-dividual educational careers of student journalists.

A Supreme Court ruling in 1988 held that high school admin-istrators have discretion to censor student newspapers. By a 5-3vote, the court said in Hazelwood School District v. Kuhlmeier thatadministrators can block publication of material inconsistent witha school’s “basic educational mission.” Justice Byron R. White citedas examples materials that are “ungrammatical, poorly written, in-adequately researched, biased or prejudiced, vulgar or profane, orunsuitable for immature audiences.” 2

In response, eight states have adopted so-called anti-Hazel-wood laws aimed at protecting high school journalists’ freedomof expression. 3 In other states, however, high school journal-ists have “an uphill battle” in resisting growing interferencefrom school administrators, according to Mark Hiestand, an at-torney with the Student Press Law Center.

“School officials seem to be more interested in good PR, andoftentimes that will conflict with good journalism,” Hiestand says.“It’s very unfortunate, but I think the First Amendment is kindof an afterthought for many school officials these days.”

College newspapers operate with greater freedom, Hiestandsays. But when Horsty, Porche and reporter Steven Barba suedCarter, the Illinois attorney general’s office answered by seek-ing to extend the Hazelwood principle to colleges and uni-versities. College journalists’ First Amendment rights are not“greater than the limited rights accorded to the [high school]students in Hazelwood,” the state argued in a legal brief.

A three-judge panel of the 7th U.S. Circuit Court of Appealssoundly rejected that argument in April 2003. Treating college

students “like 15-year-old high school students and restrictingtheir First Amendment rights by an unwise extension of Hazel-wood would be an extreme step,” the court wrote.

In a surprise move, the full 11-member appeals court grant-ed the state’s motion to reconsider the decision and heard ar-guments in January 2004. More than a year later, the case isstill undecided — an unusually long delay. In the meantime,however, a lower federal court in Michigan issued a ruling thatstudent-press advocates welcomed as limiting high school ad-ministrators’ powers under Hazelwood.

The ruling stemmed from a decision by Utica CommunitySchools officials in 2002 to censor an article by Utica High Schoolstudent journalist Katy Dean about a lawsuit alleging that dieselfumes from the Michigan school’s garage exacerbated a nearbyresident’s lung cancer. In a strongly worded opinion, U.S. DistrictJudge Arthur Tarnow said student journalists “must be allowed topublish viewpoints contrary to those of state authorities withoutintervention or censorship by the authorities themselves.” 4

The issue of editorial-viewpoint control has divided otherfederal appeals courts, according to the Student Press Law Cen-ter. Of the six appeals courts to consider the issue, three haveruled that high school administrators can censor articles or ed-itorials solely because they disagree with the views expressed,while three others say such actions go beyond the authorityrecognized in Hazelwood.

Apart from court battles, Hiestand says student-press advo-cates also worry about signs of limited support for First Amend-ment freedoms among high school students today. In a recentnationwide study, nearly one-third of the 112,000 high schoolstudents surveyed — 32 percent — said the press has too muchfreedom. 5

On the other hand, a majority — 58 percent — said highschool students should be allowed to report controversial is-sues in their student newspapers without approval of schoolauthorities. Among principals surveyed, only 25 percent agreed.

1 For coverage and legal materials from both sides, see “Hosty v. Carter: TheLatest Battle for College Press Freedom,” Reporters Committee for Freedomof the Press, www.rcfp.org. See also Richard Wronski, “Court Rips Collegefor Censoring Paper,” The Chicago Tribune, April 11, 2003, Metro, p. 6.2 The citation is 484 U.S. 260 (1988). For earlier coverage, see Charles S.Clark, “School Censorship,” The CQ Researcher, Feb. 19, 1993, pp. 145-168.3 The states are Arkansas, California, Colorado, Iowa, Kansas and Massa-chusetts (statutes); and Pennsylvania and Washington (regulations).4 The case is Dean v. Utica Community Schools, No. 03-CV-71367DT (Nov.17, 2004).5 The survey was conducted in spring 2004 by researchers at the Universityof Connecticut and sponsored by the John S. and James L. Knight Foundation.See “Future of the First Amendment: What America’s High School StudentsThink About Their Freedoms,” Jan. 31, 2005 (http://firstamendment.jideas.org).

Student Journalists Fight Campus Censorship

no


At Issue:Should Congress pass a federal shield law for journalists?Yes

yesSANDRA BARONEXECUTIVE DIRECTOR, MEDIA LAWRESOURCE CENTER

WRITTEN FOR THE CQ RESEARCHER, APRIL 2005

a federal shield law would set national and consistentstandards for a privilege that currently exists understatute, constitutional or common law in 49 states and

the District of Columbia, and under the case law in all but two ofthe federal circuits. The specifics may differ somewhat around thecountry, but all recognize that the proper functioning of the pressin a democratic society — and its essential role in keeping thecitizenry informed — depends on the existence of a privilege.

A federal shield law is intended to enable the press tohold government and other institutions accountable for theiractions and to establish reasonable and reasonably predictablestandards for both shielding and compelling disclosure ofsources and information.

Promises of confidentiality, protected by a shield law, allowjournalists to obtain and report information from sources whoonly speak on condition of anonymity — information thatmight otherwise never be revealed. The accounting fraud atEnron and abuse of Iraqi prisoners at Abu Ghraib are but tworecent national stories that required confidential sources.

But confidences in newsgathering are just as important inlocal coverage. Thanks to the press’ receipt of informationfrom confidential sources, most communities in America canpoint to a significant risk revealed or fraud uncovered, suchas stories exposing toxic-waste dumping in local waterways,sexual misconduct at a youth shelter and failing infrastructureof an urban transit system.

Subpoenas to journalists, whether for confidential or non-confidential sources and information, risk:

• reducing reporters to routine, involuntary participants inthe judicial and investigatory process;

• allowing government interference with the ability of re-porters to do their jobs;

• disrupting press/source relationships; and• encouraging potential sources simply to refuse to come

forward.Nearly a dozen journalists are currently litigating threats of

sanction from federal courts for failure to reveal confidentialsources. One is finishing a sentence of house arrest. The fed-eral courts are in conflict with one another as well as withstates’ laws and policies.

A federal shield law is urgently needed that protects confi-dential sources and adequately balances the public interest inthe fair administration of justice against the press’ need to re-main free of too-easy access to their non-confidential news-gathering and testimony.No

BRUCE FEINCONSTITUTIONAL LAWYER, WASHINGTON, D.C.

WRITTEN FOR THE CQ RESEARCHER, MARCH 2005

t he law frowns on evidentiary privileges. Thus, confidentialcommunications of even the president of the UnitedStates must bow to the needs of criminal justice.

Privilege claims should defeat truth only when absolutelynecessary to advance compelling interests. By that yardstick, afederal newsman’s privilege statute falls short of the mark. Ashield law is superfluous to investigative reporting and the ex-posure of government abuses.

The Free Flow of Information Act of 2005 is sponsored bySen. Richard Lugar, R-Ind., joined by cosponsors Sens. LincolnChafee, R-R.I., Lindsey Graham, R-S.C., and Christopher Dodd,D-Conn. It is not partisan legislation, but it is wrongheaded.

The bill does not find that a single government scandal ora single media investigation into private misconduct has beenderailed or impaired by the absence of a federal privilege law.That omission speaks volumes. For 33 years since the UnitedStates Supreme Court spoke in Branzburg v. Hayes (1972),newsmen have been vulnerable to compelled testimony ornotes in federal criminal or civil proceedings. Despite the in-ability of reporters to guarantee ironclad anonymity to sources,investigations of Watergate, the Iran-contra affair, Whitewaterand other government scandals were thorough and pivoted onanonymous sources and classified information. Indeed, a dayseldom passes without a confidential-source news story in TheNew York Times, The Washington Post or The Wall StreetJournal.

The political incentive to leak or to curry favor with thepress by passing along “breaking news” ordinarily dwarfs anyfoolproof guarantee of anonymity. Experience also teaches thatthe probability of discovering leakers approaches zero. Finally,Department of Justice guidelines permit prosecutors to subpoe-na the press only as a last, desperate measure.

States are divided over newsmen’s privilege laws. Yet no evi-dence has been assembled indicating that the press in privilegestates is more robust or muscular than in non-privilege states.

The Free Flow of Information Act would subvert the missionof a free press to reveal government crimes or malfeasance.Suppose a government official violates the Intelligence IdentityProtection Act by leaking to several reporters the name of acovert CIA operative to discredit a government critic. A grandjury subpoenas the reporters to identify the criminal culprit.Under Section 4 of the act, the effort to punish the governmentcrime would be thwarted. It crowns the media with an absoluteprivilege to refuse disclosure of any anonymous source.

The truth is too important to law enforcement to be left tothe press.


Attorneys for Cooperand Miller are empha-sizing the argument in apetition for a rehearingfiled with the full nine-judge court on March 21.Under the panel’s earli-er decision, the lawyerswrite, journalists “are nowfaced with a disturbingnew landscape.” Insteadof having a “qualifiedprivilege,” the lawyerscontinue, reporters “nowproceed with newsgath-ering at peril of havingno protection at all.”

The argument turnson the meaning of Jus-tice Powell’s stance inBranzburg. He joinedthe majority in the 5-4decision but wrote in aconcurring opinion thatany privilege claim“should be judged on itsfacts by the striking of aproper balance betweenfreedom of the press andthe obligation of all citi-zens to give relevant testimony with re-spect to criminal conduct.”

Since then, many courts have inter-preted Powell’s opinion as effectivelymodifying the majority opinion’s rejec-tion of a reporter’s privilege. However,both Sentelle and Henderson decisive-ly reject that interpretation. “WhateverJustice Powell specifically intended,” Sen-telle writes for the two judges, “he joinedthe majority.”

Sentelle also rejects any privilege forreporters under federal common law.Henderson avoided that direct issue butsaid special prosecutor Fitzgerald hadestablished sufficient grounds to over-ride any privilege that might exist. Thethird judge — David Tatel — recog-nized a common-law privilege but saidthe special prosecutor had adequatebasis for enforcing the subpoena.

In urging the appeals court to letthe panel’s decision stand, Fitzgeraldemphasized that all three judges agreedthat he had presented evidence to over-come any privilege. In addition, he ar-gued that the reporters’ lawyers weremisreading Powell ’s opinion inBranzburg. “The simple fact is thatJustice Powell joined the majorityopinion,” Fitzgerald wrote.

Smolla at the University of RichmondLaw School calls the panel’s decision“extraordinary” in rejecting any reporter’sprivilege. The decision “attacks at itsheart what had been the orthodoxy,that the Powell opinion did in fact nar-row the plurality opinion,” he says.

Meanwhile, a coalition of 36 newsorganizations is using another argu-ment in asking the court to reconsiderthe contempt citations: They question

whether the disclosure ofPlame’s identity amountedto a crime at all. In a 40-page friend-of-the-courtbrief, the groups contendthat the statute at issue —the Intelligence IdentitiesProtection Act of 1982 —prohibits only the inten-tional disclosure of a truecovert agent and only if thegovernment is taking “af-firmative measures” to pro-tect the identity.

“There is ample evidenceon the public record” todoubt that those criteria havebeen met, the brief argues.

Petitions to reconsider ap-peals panels’ decisions typ-ically are denied, but theyare most likely to be grant-ed if the case involves sig-nificant and unsettled legalissues. The D.C. court hasno deadline to act, butFitzgerald urged the courtto act quickly, saying thereporters’ refusal to coop-erate has “stalled” his in-vestigation. Lawyers for the

reporters say they will take the caseto the Supreme Court, if necessary.

Federal Protection?

M edia groups are seeking to counterthe flurry of subpoena disputes

by urging Congress to follow the leadof a majority of states and adopt a fed-eral shield law for reporters. At thesame time, the media groups are join-ing other open-government advocatesin backing a bipartisan bill to increaseaccess to government records under theFreedom of Information Act.

The proposed federal shield lawshave bipartisan sponsors in bothchambers of Congress. The Free Flowof Information Act in the Senate is

FREE-PRESS DISPUTES

Continued from p. 308

Attorney General John Ashcroft directed government agencies inOctober 2001 to take a more skeptical view of press requests for

the release of government records under the Freedom ofInformation Act. The action reversed a Clinton administration

policy that called for releasing government records unlessdisclosure would be “harmful.” The Reporters Committee

and other groups complained about the directive.

AFP

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cosponsored by Sens. Richard G.Lugar, R-Ind., and ChristopherDodd, D-Conn., and an identicalHouse bill is sponsored by Reps.Mike Pence, R-Ind., and Rick Bouch-er, D-Va. Dodd is also separatelysponsoring a somewhat broader bill(S. 369) that also covers Web-onlyjournalists, or “bloggers.”

All three bills give reporters an ab-solute privilege to protect the identi-ty of confidential sources. “Without anassurance of anonymity, many con-scientious citizens with evidence ofwrongdoing would stay silent,” Doddand Lugar wrote in an op-ed articlein USA Today. “They would rightly fearfor their job, their reputation — even,in some cases, for their safety.” 34

The bills provide qualified subpoe-na protection for reporters’ informa-tion in criminal or civil cases: Litigantsseeking to enforce a subpoena mustshow “clear and convincing evidence”that they have exhausted all other rea-sonable attempts to get the informa-tion. In criminal cases, there wouldhave to be “reasonable grounds” tobelieve that a crime had occurred andthat the testimony sought is “essentialto the investigation, prosecution, or de-fense.” In civil cases, a litigant wouldhave to show that the testimony ordocument sought is “essential” to anissue “of substantial importance” to thecase. Dodd’s bill sets slightly differentcriteria.

The bipartisan measures also wouldextend the same qualified privilege tojournalists’ telephone records or e-mailsheld by third parties. Journalists wouldhave to be notified and given an op-portunity to contest any subpoena be-fore it could be enforced.

Journalism groups generally supporta federal shield law, although some re-porters have reservations about some ofthe proposed legislation. A shield law“is needed because we need some con-sistency in the [federal] circuits,” saysBaron of the Media Law Resource Cen-ter. “It would give reporters some real

and consistent idea of what the law israther than the more random applica-tion that we have seen [in federal courts]in recent years.”

Dalglish of the Reporters Committeesays the experience under state shieldlaws shows that a federal law wouldbe useful. “State shield laws, by andlarge, work,” Dalglish says. “Even if theydon’t completely protect confidentialsources, they at least slow down theservice of subpoenas on reporters. Theyat least put the brakes on it.”

The Society of Professional Jour-nalists has strongly supported shieldlaws, but FOI committee Chair Davisacknowledges that he is “somewhatambivalent” on the subject. “I wouldmuch rather see a judicial recognitionof the privilege than a statutory man-date,” he says, “because statutory man-dates come and go with the politicalwinds.”

Some journalists also are concernedthat shield laws put the courts in theposition of determining who qualifiesas a journalist. “That horse is alreadyout of the barn,” Dalglish responds. “Ifind it repugnant to have the govern-ment deciding who journalists are, butI find it more repugnant to have jour-nalists sitting in jail.”

The main bills cover newspapers,magazines, book publishers, broad-casters and cable or satellite systemsand their employees or free-lancers withcontracts. Dodd’s bill goes further bycovering anyone who “engages in thegathering of news or information” fordissemination to the public through“any printed, photographic, mechani-cal, or electronic means” — a defini-tion that includes bloggers. (See side-bar, p. 304.)

All of the bills have been referred tocommittees, with no hearings scheduledas of April 2005. A spokesman in Dodd’soffice says no organized opposition hasbeen heard.

In a second legislative issue forjournalists, Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., are

proposing revamping the Freedom ofInformation Act for the first time innearly a decade. Among other pro-visions, the bipartisan bill would cre-ate an ombudsman to mediate dis-putes between government agenciesand FOIA requesters. It would alsomake government-owned informationheld by outside contractors subjectto the law.

Cornyn, a former Texas state at-torney general, is described by theReporters Committee as a “seasonedadvocate” for open government. Leahywas the principal sponsor of theElectronic FOI Act of 1996, whichsought to ensure access to electron-ic records. Several witnesses testifiedin general support of the bill beforea Senate Judiciary subcommittee onMarch 15, including longtime Wash-ington journalist Walter Mears andrepresentatives of the American CivilLiberties Union, the Heritage Foun-dation and the nonprofit NationalSecurity Archives.

OUTLOOKChilling Effects?

W ith contempt citations movingforward against Time’s Cooper

and the Times’ Miller, there is wide-spread concern among journalists thatthe confidentiality dispute may be caus-ing jitters among some potentialsources.

Clark Hoyt, Washington editor ofKnight Ridder Newspapers, said heknew of two cases where people hadbacked away from providing informa-tion to reporters on a confidential basisfor fear they might be investigated ortheir identities discovered from a sub-poena of the reporters’ phone records.“There is no question that there is


greater anxiety among sources abouttalking to journalists,” Hoyt told TheAssociated Press in October 2004. 35

The house-arrest sentence nowbeing served by Providence broad-caster Taricani underscores the threat,according to a report published in De-cember 2004 by The Reporters Com-mittee for Freedom of the Press. “Jim’scase underscores the need for Con-gress to pass a federal shield law toprotect journalists from being com-pelled to reveal their confidentialsources,” NBC said. “Without that pro-tection, critical information providedto a reporter from a source — whichserves the public’s right to be in-formed — will be constrained andcould ultimately be cut off.” 36

The Supreme Court discounted fearsof a chilling effect on potential sourceswhen it refused to recognize a reporter’sprivilege in the Branzburg case in 1972.But journalism groups insist the dangeris real. Without protection for confi-dentiality, “whistleblowers and otherswould be afraid to come forward to ex-pose wrongdoing and to effect change,”Barbara Cochran, president of theRadio-Television News Directors Asso-ciation, said in a Feb. 15, 2005, state-ment after the federal appeals court de-cision upholding the contempt citationsagainst Cooper and Miller.

Cooper, Miller and other reporterscaught up in the confidentiality dis-putes may be more immediately con-cerned with the prospect of spendingtime in jail to protect their sources.“It’s a scary time,” says Syracuse Uni-versity Professor Wright. But Davis atthe University of Missouri predicts abacklash if any of the reporters iseventually jailed. “It’s going to becomea public-relations nightmare for the Jus-tice Department,” he says.

Courts are posing obstacles to re-porters in several other areas. Trialjudges, for example, are continuing toissue orders limiting information orpublicity about high-profile cases. Inone recent federal case, a federal

judge in New York prohibited the newsmedia from publishing the names ofjurors in the obstruction of justice trialagainst Wall Street investment guruFrank Quattrone even though thenames were read aloud in open court.The federal appeals court in New Yorkeventually overturned the judge’s ordernearly a year after the trial had endedwith Quattrone’s conviction. 37

For its part, the Supreme Court isgiving media groups little help on ac-cess issues. The justices in 2004 turnedaside the media-backed challenge toVice President Cheney’s refusal todisclose information about the ener-gy task force, which by then hadbeen disbanded for nearly three years.In the same year, the court disap-pointed journalism groups by creat-ing a new hurdle for some Freedomof Information Act requests. Thecourt ruled that autopsy photographsof President Clinton’s White Housecounsel Vincent Foster were protect-ed from disclosure on privacy groundsunless the person requesting the doc-uments could first show evidence ofgovernment misconduct. 38

Journalism groups expect continuingfrustrations on access issues in Presi-dent Bush’s second term. “They’re goingto think they have a mandate to con-tinue to be more secretive,” saysDalglish at the Reporters Committee.

“Part of a free press is not merelylegal requirements and mandates beinghanded down by the courts,” Davis adds.“You have to have a government thatsees the press as an integral part of de-mocratic government, as part and par-cel of how we run the system, not justas an extraneous pain.”

Still, the University of Richmond’sSmolla cautions against overemphasiz-ing journalists’ legal problems. For onething, the Supreme Court and othercourts have been “very protective” offree-speech issues generally. “That ben-efits the press in the same way that itbenefits anybody who’s engaged in ex-pression,” Smolla says.

“In terms of the large march of his-tory, there’s been a steady and con-stant increase in judicial recognition offreedom of expression, and the presshas benefited generally from that,”Smolla continues. “There may be lit-tle ticks up and down in any givenyear or in any given decade, but gen-erally speaking the protection for free-dom of the press is robust.”

Notes

1 For a profile of Taricani, see Mike Stanton,“Taricani on Trial — A journalist’s day incourt. The Defendant — Worried, but readyto ‘tough this out’,” The Providence Journal,Nov. 18, 2004, p. A1. The multipart packageon the day of Taricani’s contempt hearingalso included a profile of Judge Torres byJournal staff writer Edward Fitzpatrick.2 The citation is 408 U.S. 665 (1972).3 The cases are In re: Grand Jury Subpoena,04-3138, -3139, -3140 (Feb. 15, 2005).4 Robert Novak, “ Mission to Niger,” ChicagoSun-Times, July 14, 2003, p. 31.5 See Tracy Breton, “Judge Asks U.S. Attorneyto Investigate Bevilacqua,” The ProvidenceJournal, Dec. 11, 2004, p. A1.6 See W. Zachary Malinowski, “Taricani Won’tAppeal Punishment,” The Providence Journal,Dec. 22, 2004, p. B3.7 The case is The Baltimore Sun Company v.Ehrlich, civ. WDQ-04-3822 (USDC Md.), Feb.14, 2005. Ehrlich’s order applied to DavidNitkin, the Sun’s statehouse bureau chief, andcolumnist Michael Olesker. For coverage, seeStephen Kiehl, “Sun’s Challenge of Ehrlich’sOrder Is Dismissed by a Federal Judge,” TheBaltimore Sun, Feb. 15, 2005, p. 1A.8 For background see Kenneth Jost, “CivilLiberties Debates,” The CQ Researcher, Oct.24, 2003, pp. 893-916.9 For background see Jost, ibid., and DavidMasci and Patrick Marshall, “Civil Liberties inWartime,” The CQ Researcher, Dec. 14, 2001,pp. 1017-1040.10 Quoted in Michiko Kakutani, “After Yearsof Taking Heat, Spokesman Takes Potshots,”The New York Times, March 1, 2005, p. E5.Bush’s quote was in a 2003 interview with BritHume of Fox News; Card’s remark appearedlater in The New Yorker magazine.

FREE-PRESS DISPUTES


11 Pam Belluck, “Reporter Who ShieldedSource Will Serve Sentence at Home,” TheProvidence Journal, Dec. 10, 2004, p. A28.12 Quoted in Mark Patinkin, “Media Don’t FareWell in Unscientific Survey of Taricani Case,”The Providence Journal, Dec. 16, 2004, p. G1.13 “NewsHour with Jim Lehrer,” Public Broad-casting Service, Aug. 11, 2004.14 See “State Appeal Court Refuses to QuashPrior Restraint,” Reporters Committee forFreedom of the Press, March 4, 2005(www.rcfp.org).15 The Colorado Supreme Court decision isIn re: People v. Bryant, July 19, 2004(http://www.courts.state.co.us/supct/supct-caseannctsindex.htm). For coverage, see SteveLipsher and Felisa Cardona, “Media DropBryant Lawsuit,” The Denver Post, Aug. 4,2004, p. B2.16 The cases are Nebraska Press Associationv. Stuart, 427 U.S. 539 (1976); Cable NewsNetwork v. Noriega, 498 U.S. 976 (1990).17 For a brief historical overview, see T.Barton Carter, Marc A. Franklin, and Jay B.Wright, The First Amendment and the FourthEstate: The Law of Mass Media (9th ed.),2005, pp. 27-34.18 Leonard W. Levy, Emergence of a FreePress (1985), p. 44.19 Account drawn from Geoffrey R. Stone,Perilous Times: Free Speech in Wartime: Fromthe Sedition Act of 1798 to the War on Ter-rorism (2004), pp. 33-78.20 Ibid., p. 123.21 The citations are Gitlow v. New York, 268U.S. 652 (1925); Near v. Minnesota, 283 U.S.697 (1931). For an account of the Near case,see Fred W. Friendly, Minnesota Rag: TheDramatic Story of the Landmark SupremeCourt Case That Gave New Meaning to Freedomof the Press (1981).22 The citation is 376 U.S. 254 (1964). For anaccount, see Anthony Lewis, Make No Law:The Sullivan Case and the First Amendment(1991).23 The cases are Curtis Publishing Co. v. Butts,388 U.S. 130 (1967); and Gertz v. Robert Welch,Inc., 418 U.S. 323 (1974). In Gertz, the court heldthat a private figure must prove some measureof fault in order to recover in a libel suit.24 The cases are Cox Broadcasting Corp. v.Cohn, 420 U.S. 469 (1975); and The FloridaStar v. B.J.F., 491 U.S. 524 (1989).25 The cases are Richmond Newspapers, Inc. v.Virginia, 448 U.S. 555 (1980); Press-Enterprise

Co. v. Superior Court (I), 464 U.S. 501 (1984)(jury selection); Press-Enterprise Co. v. SuperiorCourt (II), 478 U.S. 1 (1986).26 The case is New York Times Co. v. UnitedStates, 403 U.S. 713 (1971). For an account,see David Rudenstine, The Day the PressesStopped: A History of the Pentagon PapersCase (1996).27 The cases are Zurcher v. Stanford Daily,436 U.S. 547 (1978); Reporters Committee forFreedom of the Press v. American Telephone &Telegraph Co., 593 F.2d 1030 (D.C. Cir. 1978).28 See Mark Fitzgerald, “Suffering for Silence,”Editor & Publisher, Aug. 13, 2001, p. 11.29 Todd Shields, “Feds Stir Double Trouble byUsing Subpoena Power,” Editor & Publisher,Sept. 3, 2001, p. 5.30 See William Glaberson, “Closed ImmigrationHearings Criticized as Prejudicial,” The NewYork Times, Dec. 7, 2001, p. B7.31 Detroit Free Press v. Ashcroft, 303 F.3d 681(6th Cir. 2002); North Jersey Media Group v.Ashcroft, 308 F.3d 198 (3d Cir. 2002); Centerfor National Security Studies v. Departmentof Justice, 331 F.3d. 918 (D.C. Cir. 2003).

32 Ashcroft’s memorandum can be found athttp://www.usdoj.gov/04foia/011012.htm. Forcoverage, see “Critics Say New Rule LimitsAccess to Records,” The New York Times, Feb.27, 2002, p. A18.33 Quoted in “The Cost of Keeping Mum,”Time, Feb. 28, 2005, p. 44.34 Christopher J. Dodd and Richard G. Lugar,“Secrecy: It Can Work for You,” USA Today,March 18, 2005, p. 25A.35 See Seth Sutel, “Pressure on ReportersBegins to Spook Sources,” The AssociatedPress, Oct. 24, 2004.36 Grant Penrod, “A Journalist’s Home Is HisPrison,” News Media and the Law, winter 2005.37 The decision by the Second U.S. CircuitCourt of Appeals is United States v. Quattrone,04-2432 (March 22, 2005). For coverage, seeDavid Rovella, “Media Had Right to Use Namesof Quattrone Jurors, Judge Says,” BloombergNews, March 23, 2005.38 The decisions are Cheney v. U.S. DistrictCourt, 540 U.S. — (2004); National Archivesand Records Administration v. Favish, 541U.S. 157 (2004).

FOR MORE INFORMATIONMedia Law Resource Center, 80 Eighth Ave., Suite 200, New York, NY 10011;(212) 337-2000; www.medialaw.org.

Radio-Television News Directors Association, 1600 K St., N.W., Suite 700,Washington, DC 20006-2838; (202) 659-6510; www.rtnda.org.

The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite1100, Arlington, VA 22209; (703) 807-2100; www.rcfp.org.

Society of Professional Journalists, 3909 N. Meridian St., Indianapolis, IN46208; (317) 927-8000; www.spj.org.

Student Press Law Center, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209-2275; (703) 807-1904; www.splc.org.

FOR MORE INFORMATION

About the AuthorAssociate Editor Kenneth Jost graduated from HarvardCollege and Georgetown University Law Center. He is theauthor of the Supreme Court Yearbook and editor of TheSupreme Court from A to Z (both CQ Press). He was amember of The CQ Researcher team that won the 2002ABA Silver Gavel Award. His recent reports include “Sportsand Drugs” and “Supreme Court’s Future.”


Books

Carter, T. Barton, Marc A. Franklin and Jay B. Wright,The First Amendment and the Fourth Estate: The Lawof Mass Media (9th ed.), Foundation Press, 2005.The legal textbook comprehensively covers the full range

of media law issues, including libel, privacy, access, mediaconcentration and regulation of electronic media. Carter is aprofessor at Boston University, Franklin a professor emeritusat Stanford University and Wright a professor at SyracuseUniversity’s S.I. Newhouse School of Public Communication.

Levy, Leonard W., Emergence of a Free Press, OxfordUniversity Press, 1985.The distinguished constitutional historian, a professor emeri-

tus at Claremont Graduate School, traces the development offreedom of the press in England and America in the 17th and18th centuries through the writing of the First Amendment andthe debate over the Sedition Act.

Smolla, Rodney A., Suing the Press: Libel, the Media,and Power, Oxford University Press, 1986.A leading First Amendment expert, now dean of the Uni-

versity of Richmond Law School, chronicles the evolution oflibel law from New York Times v. Sullivan through eight high-profile defamation suits and various proposals for reform.Smolla’s Free Speech in an Open Society (Knopf, 1992) discusses“news-gathering in the international marketplace.”

Stone, Geoffrey R., Perilous Times: Free Speech inWartime: From the Sedition Act of 1798 to the War onTerrorism, Norton, 2004.The prominent University of Chicago law professor details

government policies toward freedom of press and speechfrom the passage of the Sedition Act in the new nation’s firstdecade through the Civil War, two world wars, the VietnamWar and the current war on terrorism. Includes detailed notes.

Articles

Fernandez, Elizabeth, “Slew of journalists under legal siegefor not revealing sources,” The San Francisco Chronicle,Dec. 8, 2004, p. A6.The article gives a good overview of the various confi-

dential-source disputes a week before federal appeals courtarguments in the Matthew Cooper-Judith Miller contempt ofcourt case.

Garcia, Guillermo X, “The Vanessa Leggett Saga,” AmericanJournalism Review, March 2002, p. 20.

The article explains how an academic-turned-true crime authorended up in jail for a record 168 days for refusing to turn overconfidential notes and tapes from her investigation of the high-profile killing of a Houston socialite in 1997.

McCollam, Douglas, “Attack at the Source: Why thePlame Case Is So Scary,” Columbia Journalism Review,March/April 2005, pp. 29-37.The article opens with a short retelling of the origins of

the Branzburg decision and then details the various pend-ing cases on confidential-source disputes, focusing on theinvestigation of the leak of the identity of CIA operativeValerie Plame.

Penrod, Grant, “A Journalist’s Home Is His Prison,”News Media and the Law, winter 2005.The author details the contempt of court proceeding and

home-confinement sentence against Rhode Island televisionreporter James Taricani for refusing to disclose the confi-dential source who leaked a videotape in a high-profile localcorruption case.

Smolkin, Rachel, “Under Fire,” American JournalismReview, February/March 2005.A spate of recent cases in which reporters have been sub-

poenaed for their confidential sources and recent court de-cisions rejecting reporters’ privileges to withhold informationhave implications for press freedom.

Thacker, Sara, “Courts split on whether immigrationhearings should be open to the public,” The News Mediaand the Law, fall 2002, p. 4.The cover story in the quarterly magazine published by

The Reporters Committee for Freedom of the Press detailsthe two cases challenging the closure of immigration hear-ings for the hundreds of people detained after 9/11. Anotherstory in the package covers the ultimately unsuccessful ef-fort to obtain the detainees’ names through the Freedom ofInformation Act. See Rebecca Daugherty, “Appeals court mustdecide whether detainee identities will be released.”

On the WebTwo advocacy groups in particular provide comprehensive,

timely coverage of press-related issues in the courts andelsewhere: The Reporters Committee for Freedom of thePress (www.rcfp.org) and the Student Press Law Center(www.splc.org). Thorough and timely coverage can also befound on Media Law Profs Blog (http://lawprofessors.type-pad.com/media_law_prof_blog/); the editor is Christine A.Corcos, associate professor of law, Louisiana State University.

Selected Sources

Bibliography


Bloggers

Bray, Hiawatha, “Teen Reporter Pays Price for AppleCoverage,” The Boston Globe, March 14, 2005, p. C3.Apple Computer is suing a young blogger for publishing

various trade secrets on his site, ThinkSecret.com.

Glater, Jonathan, “At a Suit’s Core: Are Bloggers Reporters,Too?” The New York Times, March 7, 2005, p. C1.Apple Computer has asked the courts to decide who should

be considered a journalist and therefore have the right tokeep sources confidential.

Rosen, Jeffrey, “Your Blog or Mine?” The New YorkTimes Magazine, Dec. 19, 2004, p. 24.As blogs proliferate, the boundaries between public and

private are being transformed.

Bush Administration and the Press

Shaw, David, “Is Bush Really Implementing a Full-CourtPress on Media?” Los Angeles Times, March 13, 2005, p.E14.A media critic says the Bush administration has embarked

upon a campaign to strip the press of “their traditional in-fluence in national affairs.”

Shaw, David, “Journalists are Working in a Dark and Dan-gerous Era,” Los Angeles Times, Nov. 21, 2004, p. E18.With the re-election of Bush, the most media-averse pres-

ident in recent memory, the ongoing siege against the presswill only worsen.

Confidential Sources

“An Exchange on Reporters and Their ConfidentialSources,” Los Angeles Times, Oct. 20, 2004, p. B11.The executive editor of The New York Times and the edi-

torial-page editor of the Los Angeles Times debate whetherreporters have an “absolute right” to protect sources.

Lane, Charles, “In Leak Case, Reporters Lack Shield ForSources,” The Washington Post, Nov. 29, 2004, p. A1.The symbiotic relationship between journalists and confi-

dential sources enjoys less protection under federal law thanit does in most states.

Liptak, Adam, “Judges Skeptical of First AmendmentProtection for Reporters in C.I.A. Leak Inquiry,” TheNew York Times, Dec. 9, 2004, p. A28.Federal judges say the Supreme Court’s 1972 Branzburg

v. Hayes decision negatively answered the question ofwhether the First Amendment protects reporters’ confiden-tial sources.

Judith Miller and Matthew Cooper

Kurtz, Howard, “Contempt & Praise for Reporter,” TheWashington Post, Feb. 17, 2005, p. C1.A federal appeals court upheld a ruling in the Valerie Plame

probe against Miller of The New York Times and Cooper of Time.

Leonnig, Carol, “Judges Order 2 Reporters to Testify onLeak,” The Washington Post, Feb. 16, 2005, p. A1.Miller and Cooper may be jailed if they continue to refuse

to answer questions about their confidential sources.

Savage, David, and James Rainey, “Judge Say ReportersMust Name Sources in CIA Case,” Los Angeles Times,Feb. 16, 2005, p. A1.Reporters do not have a First Amendment right to refuse

to testify about their conversations with government officials.

Shield Laws

Dodd, Christopher, and Richard Lugar, “Secrecy: It CanWork for You,” USA Today, March 17, 2005, p. 25A.A federal shield law for reporters is needed to protect the

public’s right to know.

Rutten, Tim, “Reporters Should be Shielded from Jail,”Los Angeles Times, Feb. 19, 2005, p. E1.When judges ruled journalists can be jailed for refusing to

reveal sources, they underscored the need for a shield law.

Weisberg, Jacob, “Who Is a Journalist?” Slate, March 9,2005, www.slate.com.The big problem with shield laws is how to decide who

is a journalist.

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