The Fourth Estate: Shield Law

By: samschoenfeld  //  Investigative Reports, Politics

As the world wades further and further into the Information Age, the definition of a journalist has continued morphing at a faster rate than ever. So what is a journalist? Is it a person acting as a watchdog of the government, or a spokesman for it? Is it a member of age-old institutions that have been respected for years, or is it a lone speaker trying to be heard above the din of voices? Did he or she study some form of writing, or is he an accountant with a hobby? Does it matter?

These are questions that no longer only plague discussions of credibility, but also the laws of the land. In recent months the discussion surrounding the implantation of a federal shield law has significantly increased, with cases like Jana Winter’s and James Rosen’s garnering mass media coverage. But smaller cases have been surfacing as well, such as the Crystal Cox defamation suit.

 

What Is a Journalist?

Merriam Webster defines a journalist firstly as a “writer or editor for a news medium,” and secondly as a “writer who aims at a mass audience.” While the first definition may be reserved for employees of institutional news organizations, the second could easily apply to any blogger. Most citizen journalists know they’ll never reach more than a few readers, but it doesn’t mean that they don’t hope to go viral. Most people don’t write in a public forum just for themselves.

The complication comes when you consider the rights of a journalist, and how broadly those rights should apply.

Last summer the Senate Judiciary Committee spent time debating the definition of a journalist as it constructed the language for a federal shield law, which is any law that gives a reporter privilege, much like a priest or doctor has, that prevents a judge from compelling him or her to produce information for a subpoena. Sen. Diane Feinstein wanted to ensure that any definition did not cover entities such as WikiLeaks, who she feels aren’t journalists, just leakers. One proposal she put forward was a salary requirement. Sen. Chuck Schumer fought that requirement because in the Internet Age it’s not just writers who earn a living for it who are disseminating important public information.

Consider Sohaib Athar, also known by his Twitter handle “Really Virtual,” who unknowingly live-tweeted the military operation that killed Osama bin Laden. He may live in Pakistan, but had he lived in the United States that type of citizen reporting likely would, and should, have been covered as journalistic in nature. Another prime example is the work of the members of the Arab Spring who helped forward the goals of freedom. TIME even awarded the protesters from that movement, as well as others such as Occupy Wall Street, with its “Person of the Year” award in 2011.

 

The Need For a Shield Law

Currently 40 states have enacted specifically tailored shield laws. The rest of the states, less Wyoming, protect a reporter’s privilege through case law, the state constitution, or other legal means.

The federal shield law, which would likely trump state laws and render them obsolete, is slowly making its way through Congress. The language, as it stands, states that a party searching for information in a trial must have exhausted all other means of obtaining the information; that there is a reasonable belief that a crime has been committed; and that the information is critical to the party winning its suit (criminal or civil). Other situations under which a journalist could be compelled to testify include cases of future national security threats; if the information could prevent imminent bodily harm or death; if trade secrets are being disseminated; or if the public interest of the information being revealed outweighs the public interest of the information being withheld. A judge has the final say on a case by case basis. The law also does not protect defamation, slander, and libel, which have case law as precedents.

A last provision in the federal law state that the subpoena can’t be overly broad, unreasonable, or oppressive, and it must be “narrowly tailored” in subject matter and time so that other documents aren’t unnecessarily revealed.

So why is this type of law necessary? Take a look at our current administration. Many say that it is the worst for ever for going after reporters. New York Times Executive Editor Jill Abramson told Al Jazeera America last year that the Obama administration “is the most secretive White House that I have ever been involved in covering” in 22 years; James Goodale, one of the lawyers who fought for publication of the Pentagon Papers and defended the Times’ right to publish them in front of the Supreme Court, wrote an editorial for The Daily Beast last May that the Obama administration is worse than Nixon’s in terms national security press freedom. In fact, this administration has prosecuted eight individuals for felonious crimes of leaking classified information to the press under the 1917 Espionage Act, compared with a total of three prosecutions for all previous administrations.

First, it was uncovered that the Department of Justice had seized two months of incoming and outgoing phone records from Associated Press reporters and editors without notifying the publication to allow an appeal. The seizure came after The AP printed a story in May 2012 about the government’s actions to stop a bomb from Al Qaeda in Yemen. The AP says they consulted with the government to make sure no national security information was divulged, but the publication was still secretly monitored.

It was soon revealed that in 2009 the DOJ used a search warrant to monitor Fox News reporter James Rosen. Rosen, a beat reporter in Washington, had his movements monitored via his State Department security badge. The warrant, which also permitted monitoring of Rosen’s email, was issued after the DOJ argued that he was a criminal co-conspirator with Stephen Jin-Woo Kim in leaking classified information that North Korea may test a nuclear bomb.

These leaks led to reforms in the DOJ, but a federal shield law would theoretically, and hopefully, further limit the government from overstepping its power. Confidential sources are the most vital tool an investigative reporter has; without them, there would not be a free dissemination of information because there would be very little information to report. The monitoring of Rosen led to a conviction of his source, Kim, likely keeping other possible sources from approaching Rosen in the future.

 

A Federal Definition for “Journalist”

But the most important part of the federal law, and the part that judges, journalists, and citizens will focus on, is how a journalist was ultimately defined. The final language protects those who publish news or information for any news information service whether it’s in print, electronic, or another format. The person must also act like a journalist, meaning he or she must gather information and materials with the prior intention of publishing.

Other parameters do outline a type of salary requirement—you’re covered if you worked for a news organization for at least one year in the previous 20 or three months in the previous five years—but it also protects student journalists. And lastly, what pleased many in the media was the addition of a clause granting a judge the authority to extend coverage under the shield law to any person if the judge felt doing so was “necessary to protect lawful and legitimate news-gathering activities,” meaning that a citizen journalist doing true reporting could be covered.

 

Historical Setbacks

The main legal barrier to a federal shield law is the Supreme Court Case Branzenburg v. Hayes. The court was deeply divided, siding 5-4 against the journalists claim that the press clause in the First Amendment constituted a privilege similar to that of a doctor’s, spouse’s, religious overseer’s, or lawyer’s protecting them from testifying before a grand jury. The court held that the burden to report the news doesn’t outweigh the public’s need for a law enforcement system and the absence of such a privilege had not held back the press from flourishing since America was birthed.

While the case has been a set back for journalists since 1972, there were bright spots in the decisions. Justice Byron White, writing for the majority, wrote that though the court declined to recognize a privilege for journalists, it did see the importance of a free press and that the government should have to show “a substantial relation between the information sought and a subject of overriding and compelling state interest.” Justice Lewis Powell concurred, writing “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”

 

Is A Shield Law a Good Idea?

Despite the obvious need for some type of protection for journalists to protect their sources, there are concerns with the actuality of a federal shield law. Is it a good idea for the government to define a journalist? Many think this may lead to licensing for journalists, which is an enormous hindrance on free speech and a form of censorship, and thusly unconstitutional.

Syracuse University Professor Roy Gutterman—an expert on communications law and the First Amendment, as well as the director for the renowned Tully Center for Free Speech at Syracuse—prefers that the “news gathering function” be defined instead of a “journalist.” Gutterman told Veritas News that “The analogy to licensing is obvious and it’s a long standing concern with shield law, whether it’s federal or state, it gets into this question of who gets to qualify,” so language that asks questions like “do you engage in news gathering and reporting and editing” would be preferable.

Another concern is the government overriding any law put in place. As Gutterman pointed out, the Department of Justice already has guidelines for subpoenaing reporters. “They can’t just willy-nilly call up a reporter and ask for information or subpoena them. There is a sort of checklist they have to engage in, but it’s easy to overcome.” It’s certainly easy enough to find a claim for national security or an imminent threat, especially if those claims are considered top secret. In those cases the information doesn’t have to be conveyed in open court, and so a journalist can’t contest the veracity of the claim. The Attorney General Eric Holder even called James Rosen a “flight risk” so that the DOJ didn’t have to notify him that he was being surveilled.

 

The Future

It’s quite possible that, not only will a federal shield law finally be put in place, but that the Supreme Court will soon rule on the matter of a reporter’s privilege. New York Times reporter James Risen faces prison for refusing to testify in the criminal trial of former CIA agent Jeffrey Sterling. Risen wrote in his book, State of War, about a failed operation to sabotage Iran’s nuclear research, and the DOJ thinks Sterling was the source. A three judge panel from the 4^th US Circuit Court of Appeals ruled that Risen must testify, but in January he appealed the ruling to the Supreme Court.

As the current administration fights tooth and nail to stem its leaky faucet, it’s more important than ever that journalists are protected. The United States contends its position as the world’s policemen because it is a democracy, and citizens are granted personal freedoms. The US condemns other countries, like Egypt, for jailing reporters. So why is this condemnation not reflected on the United States’ legal system? “You talk about making an international statement, it was very hard for the US to condemn other countries where reporters are…harassed, beat, and so on,” Gutterman said to Veritas News. “And now we have the federal government going after reporters who are going after the highest forms of government and it doesn’t look good and isn’t American tradition.” No one disagrees that the government has a difficult job to do protecting state secrets, but maybe it should spend less time fighting reporters and more time acting morally and within the boundaries of the law so that employees don’t feel the need to blow the whistle. (Samantha Schoenfeld – VNN) (Image: Flick | Anonymous9000)