WHO COUNTS AS A JOURNALIST, FOR FIRST AMENDMENT PURPOSES?:
The Strange Case Of Vanessa Leggett

Last week, Vanessa Leggett was released after serving over five months in jail. She had conducted interviews in the course of working on a book about a murder, and when prosecutors presented their case to the grand jury, they subpoenaed her interview notes, and sought to question her about her confidential sources. However, Leggett refused either to turn over the notes or to reveal the identities of her sources.

Prosecutors responded by procuring a contempt order to keep Leggett in jail until she changed her mind - but she never did. She was released only because the current grand jury's term had ended, and she continues to face the threat of being jailed again when a new grand jury session begins.

Even given the prospect of returning to jail indefinitely, Leggett shows little sign of breaking. After easily beating the prior, 46-day record for a journalist's incarceration for refusal to turn over notes, Leggett commented that she would be willing to return to jail because "This is not so much about me. It's about the public's right to a free and independent press."

Leggett is rapidly becoming famous as a First Amendment martyr for press freedoms. Yet what may be most amazing, and ironic, about this unusual case is that prosecutors apparently still contend that Leggett is not even a journalist in the first place.

Whether Leggett should be forced to turn over her notes is a difficult and highly factual question. Since she interviewed a key witness who later committed suicide, prosecutors may be able to make a credible case that there is a compelling need for the notes, a need sufficiently great to override the qualified journalist's privilege. But the question of whether she is a journalist and therefore entitled to the privilege is a simple one, which prosecutors should easily be able to resolve in the affirmative.

Does Publication A Writer Make?

Portrayed by the Fifth Circuit as a "virtually unpublished freelance writer," Leggett has yet to publish a book or any news articles. However, Leggett has taught English and criminal justice courses at the University of Houston, suggesting that she is more than qualified and able to write and publish a murder book. Moreover, no one disputes that she conducted her interviews with a view towards someday writing a book that would be based on them, and not for any other purpose.

Some clarity from the Fifth Circuit Court of Appeals on the issue of who counts as a journalist - and a ruling that Leggett clearly is one - would have been welcome. Yet while Leggett was still in jail, the court ruled against her appeal without addressing this issue.

Even assuming that Leggett does count as a journalist, the court held, she would still have to turn over her notes and answer questions about her sources. (Leggett is seeking Supreme Court review of this ruling, but her chances are likely to be slim, as the area of confidential source protections is relatively well settled).

What should matter in deciding the issue of whether Leggett is a journalist, and thus entitled to the journalist's qualified privilege to protect her confidential sources, is not whether Leggett can publish, has published, or eventually does publish. Rather, it is whether she conducted her interviews with the intent to publish - and it seems she undisputedly did.

Certainly the prosecutors who have challenged Leggett's status as a writer would not maintain that a prosecutor on his or her first day in the office is not "really" a prosecutor, for he or she has not yet tried a case. Rather, that person is a prosecutor because he or she intends to prosecute, and has made preparations (joining the office) to do so, and that is enough.

After all, publication is not the beginning of the enterprise of journalism, but rather the end of it. Leggett was a journalist when she first put pen to paper - or perhaps when she made her first, nervous call to an interview subject. The confidentiality of her sources should therefore be protected to the extent the journalist's privilege allows.

Should An Intent to Publish Be Necessary?

Indeed, perhaps even the intent to publish should not be the bar set for a writer before she can garner First Amendment protections: During her lifetime, was Emily Dickinson merely an "unpublished freelance poet" unworthy of First Amendment freedoms? Were Franz Kafka and the poet Fernando Pessoa, who like Dickinson published large amounts of work posthumously and may not have intended all of it for publication, not really writers while they lived?

Publishers may not accept the work of a truly innovative writer - and such a writer may choose to be self-published or even (like Dickinson) not to publish at all. For instance, Matt Drudge publishes himself, yet he is a highly influential, if controversial, journalist. Certainly he should be entitled to the journalist's privilege.

Social approbation and the legal status of qualifying as a journalist should not have to go hand in hand. Leggett's being a freelancer is apparently not good enough for the prosecutors - or apparently, for the Fifth Circuit, which made her status the subject of a disparaging reference. But going down the road of judging qualifications, and requiring institutional affiliations of sufficient prestige to impress the court, is not only unfair to the fringe writer, but it also cut dangerously close to the type of scrutiny of content that the First Amendment most abhors.

Prosecutors surely would not maintain that Leggett was not a journalist if she were a New York Times reporter - but that is because of the Times' reputation and content, and it is not the government's business to judge among writers and publishers who is the best and the most worthy of legal protection: all deserve such protection.

From a First Amendment perspective, Leggett should not have to affiliate herself with an institution at all, let alone allow prosecutors or a court to judge whether the publication or audience for which she writes is good enough to endow her with the legal status of "journalist." After all, the First Amendment aims to protect the outsider, the dissenter, the protester: those without institutional protections. Requiring publication, or perhaps even intent to publish, before affording a writer the journalist's privilege thus turns the First Amendment on its head.

Now, in an ironic twist, Leggett's fame will probably guarantee her book's publication. Not only has Leggett attracted media attention, but she now has said she intends to incorporate her jail experience into her book.

If Leggett signs a book deal tomorrow, will prosecutors finally admit she is a journalist? One would hope the answer is yes. But if so, then the prosecutors should see the folly of their taking publication into account in the first place.

Fame and the possibility of a lucrative book deal did not suddenly transform Leggett into a journalist. Instead, she became one as soon as she decided to write a book. Journalism is essentially about the work that underlies it, not about approval or money or fame, and Leggett did that work. Indeed, she apparently did her work so well that the prosecutors would now love to profit from it in their grand jury investigation.

If prosecutors continue to require publication for a writer to count as a journalist, then they will only create more Vanessa Leggetts - whose very persecution, ironically, transforms them into the published writers they are required to be.