News must often be gathered by confidential sources, or not at all. That confidentiality must be uniformly protected.
By David B. Rivkin Jr. and Lee A. Casey
A Colorado judge’s threatened contempt sanctions against Fox News investigative reporter Jana Winter—who refuses to reveal a confidential news source—has refocused public attention on how journalists operate.
News must often be gathered from confidential sources, or not at all. Given how vital is the freedom of the press in a democracy, that confidentiality must be maintained. It is time that Congress recognize this and enact legislation that enables journalists to protect their confidential sources and newsgathering materials.
Ms. Winter covered the July 20, 2012 mass shooting that killed 12 people and injured 58 others in an Aurora, Colo., movie theater. Based on confidential law-enforcement sources, she reported that James E. Holmes, who is charged with the murders, had previously sent a notebook to his psychiatrist describing his intent to kill.
Now that Mr. Holmes is facing trial, his defense attorneys want to know the identities of Ms. Winter’s sources to aid in their client’s defense. The judge has yet to decide whether the notebook, which is potentially covered by a patient-psychiatrist privilege, is admissible. He has postponed until August a decision on whether he will force Ms. Winter to reveal her sources. But if he ultimately sides with the defendant, Ms. Winter will have to choose between violating her sources’ trust and going to jail.
Such pressures on reporters are not uncommon, with prosecutors, defense counsel and judges demanding disclosure of their confidential sources and newsgathering materials. In 2005, for instance, New York Times reporter Judith Miller was jailed for refusing to reveal a confidential source, who leaked to her the identity of CIA employee Valerie Plame, to a grand jury.
Although most states provide some protection for journalists in the form of a reporter’s “privilege,” or “shield law,” the extent of these provisions varies. Fewer than half of the states (including such key media markets as New York, California and Washington, D.C.) have a robust privilege that protects journalists’ confidential sources, with a few narrow exceptions. Other states have recognized only a “qualified” privilege, where consideration is given to how difficult it might be to otherwise obtain the desired information.
David S. Tatel, a highly respected judge of the U.S. Court of Appeals for the D.C. Circuit, suggested in Ms. Miller’s case—where contempt sanctions were upheld because of the gravity of the national security issues involved—that “reason and experience,” as manifested by the laws in “forty-nine states and the District of Columbia,” support “recognition of a privilege for reporters’ confidential source.” Unfortunately, today federal law recognizes only a modest reporter’s privilege, grounded in the rules of evidence and applied by courts on a case-by-case basis, without detailed congressional guidance. Congress can and should do more, defining such a privilege by statute.
A national privilege should include a presumption that journalists may protect the confidentiality of their sources and that this privilege can be overridden only when there would otherwise be an imminent danger to public safety or national security (such as the actual threat of violence or attack). Confidentiality would not be overridden merely because it might jeopardize a prosecution or civil lawsuit.
A national law would not violate the Constitution’s fundamental federalism principles. States are guaranteed wide latitude in addressing their own needs and concerns. But where a national market has developed—as is the case with news and newsgathering—a uniform federal approach to regulation is justifiable.
Federal pre-emption of state law in this area will be a step further than Congress has considered in the past, but Congress has wrestled with this problem before. A bill that would have applied to all federal proceedings, establishing a robust privilege subject to a few exceptions, came close to passage in 2009. It foundered because of the “WikiLeaks” controversy, where a trove of the most sensitive U.S. diplomatic and military documents was released en masse. The bill’s defeat may well have been Julian Assange’s ultimate revenge against the freedom of the press that he disingenuously claimed to venerate.
A reporter’s privilege is not cost-free—sometimes it will impede the ability of the government and private plaintiffs to win in court. However, the cause of justice is not the only worthwhile goal in America’s system of ordered liberty. Civil and criminal prosecutions are already hampered by a set of well-recognized privileges—accorded to psychiatrists, priests, lawyers and spouses—that reflect a societal recognition that they are worth the costs.
Similarly, prosecutors are often unable to introduce important evidence if it was improperly obtained, reflecting the belief that inculcating proper behavior by law-enforcement personnel is worth the costs. A strong federal shield law for reporters would be consistent with how we balance the cause of justice and other key constitutional and societal values.
Given the growing importance of nontraditional media sources, the privilege should apply to professional reporters and citizen-bloggers. It should not, however, be extended to cases where the reporter himself is the target of a criminal investigation unrelated to his receiving of confidential information, such as securities trading on inside information.
Enacting a robust federal shield law for reporters has obvious merits and no partisan impediments. It is thus necessary and doable.
Messrs. Rivkin and Casey served in the U.S. Justice Department during the Reagan and George H.W. Bush administrations. They are partners practicing in the Washington, D.C., office of Baker & Hostetler LLP.