EVEN AFTER THE TERRORIST ATTACKS, THE PRESS'S NEWSGATHERING PRIVILEGE MUST BE RESPECTED

Among the many news stories that September 11's terrorist attacks knocked from the headlines were three recent, controversial government attempts to compel the disclosure of journalists' confidential sources and other unpublished information. In one case, an aspiring book author has now spent more than two months in jail for refusing to testify about her sources.

The temptation may now be especially great for the government to liberally subpoena journalists, as both law enforcement and the press pursue their own investigations arising from the September 11 attacks. For this reason, these three recent government attempts to compel information from journalists merit continued discussion.

Because an independent press has been one of our nation's great strengths, particularly in times of crisis, any attempts to turn the news media into an investigative arm of law enforcement should receive exacting scrutiny.

Preserving the Journalist's Privilege

Most courts and states recognize a "journalist's privilege." Recognition of this privilege means that a reporter may not be compelled to disclose her confidential sources (and, typically, other unpublished information), unless the government or litigant seeking disclosure has first satisfied a rigorous three-part test.

First, the government or litigant must show that the information sought is centrally relevant to a case or investigation. Second, it must show that all reasonable alternative sources of information have first been exhausted. Third, it must show that the need for the information overrides the First Amendment interest in protecting the journalist's newsgathering material. Satisfying all three conditions is enough to defeat the privilege in many jurisdictions, but some have even stricter protections.

In legal parlance, this privilege is qualified, not absolute. That means that it can be overcome, but only upon this three-part showing. The reason it is qualified is the recognition that in cases of exigent need, compelled discovery of a journalist's sources may be necessary, but only as a last resort.

Why the Privilege Exists

The Third Circuit Court of Appeals explained the rationale for this privilege in its 1979 decision in Riley v. City of Chester. The court reasoned that without such a privilege, "[a] journalist's inability to protect the confidentiality of sources . . . will jeopardize the journalist's ability to obtain information on a confidential basis," which "in turn will seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public." Because "[t]he role of an untrammeled press as a vital source of public information was one of the primary bases for its First Amendment protection," the court continued, the privilege is required to ensure that journalists will not lightly be conscripted as tools of law enforcement investigation.

For similar reasons, Department of Justice regulations impose strict requirements on subpoenas seeking the results of journalists' newsgathering. As the regulations explain: "Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues."

Nevertheless, recent government actions indicate a disturbing lack of respect for these values, as three examples illustrate.

Journalist Leggett, Now In Jail

Since July 20, a federal court in Houston has kept aspiring author Vanessa Leggett in jail on contempt charges. She has been researching a book about a four-year-old murder case. Despite her confidentiality promises to sources, prosecutors have sought to compel her testimony about, and interview tapes with, a suspect in the crime and other potential witnesses.

On August 17, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, joining some but not all of its sister Circuits, ruled in an unpublished order that the journalist's privilege does not apply at all in grand jury proceedings.

Based on this troubling holding — excusing the government from even showing that its need for the material overrides free-press rights — Leggett has now been incarcerated for contempt longer than any other journalist in American history. Leggett is appealing the panel's decision to the full Fifth Circuit Court of Appeals.

A Threatened Subpoena for AP Reporter Solomon's Records

In apparent disregard of its own rule that a journalist's telephone records cannot be subpoenaed until prosecutors first "negotiat[e] with the affected member of the news media" and exhaust reasonably available alternative sources, the Justice Department on May 14 secretly subpoenaed the telephone records of Associated Press reporter John Solomon.

The subpoena came ten days after Solomon had written a story about a federal probe into the fundraising activities of a U.S. Senator. After finally being informed of the subpoena, the AP in early September asked Attorney General John Ashcroft for a public accounting, calling the secret subpoena "an extraordinary strike against the press."

A Subpoena to NBC for Election Videos

Government action of this sort is not limited to any one political party. For several months, Representative Henry Waxman (D.-Cal.), has been seeking never-broadcast NBC videotapes of its November 2000 election-night news operation.

Waxman has been investigating what he admits is merely a rumor that Jack Welch, then chairman of NBC parent company GE, attempted to influence the network's call of the Presidential election. Waxman has threatened that he may attempt to subpoena the tapes.

NBC, however, has resisted, arguing that "there is simply no basis for a news organization to turn over internal materials, especially when the grounds for the request is a baseless 'rumor.'" On September 4, NBC let pass a Waxman-imposed deadline to produce the tapes.

Why the Free Press Disputes — and the Privilege — Still Matter

Understandably, these three free-press disputes have faded far into the background as our nation reacts and responds to the horrific attacks of September 11. But as the United States prepares for an intensified war against terrorism, and gears up to equip law enforcement with improved intelligence-gathering tools, it is important to remember that a strong and free nation depends on an independent press, one not turned into an investigative arm of the state.

As Justice Black emphasized in his concurrence in the "Pentagon Papers" case — New York Times Co. v. United States — the First Amendment enables the press to act as a vital check on government power, and to ensure that the people are fully and fairly informed before their government sends them "to distant lands to die of foreign fevers and foreign shot and shell."

As Black summarized, it was the Founding Fathers' intent that "[t]he press was to serve the governed, not the governors." This principle can, and must, coexist, with a national effort to fight terror attacks and defeat those behind them.