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Julie Hilden

The Federal Media Shield Bill, Anonymity, and the Definition of a Journalist


Wednesday, December 16, 2009

On December 10, the Senate Judiciary Committee voted to present a federal "media shield" bill to the full Senate. If enacted into law, the bill would allow the media to protect confidential sources in federal cases without risking being jailed or fined for contempt of court. In some circumstances, however, the bill's protection would only be triggered if the application of a balancing test cuts in the media's favor, and against compelled disclosure.

This development has sparked excitement and interest, since it seems that, for the first time, it may truly be possible to reach compromise on a shield bill, and get it passed into law. In light of the fact that almost all states have media shield laws, either by statute or as a result of case law, it seems late in the day for a parallel federal statute to be passed. Thus, many feel that this is a chance to accomplish something that ideally should have been done long ago.

Like the states' laws, the federal law, if passed, would incorporate balancing tests to allow courts to mandate disclosure of sources in some instances – such as in a criminal proceeding when the media possesses evidence directly relevant to the issue of guilt or innocence. However, even in criminal cases, the bill requires that subpoenas be narrowly tailored and that the information at issue be essential, if disclosure is to be ordered.

One of the key issues that has arisen, with respect to the bill, is how to define a "journalist." (Another key issue, but one that is beyond the scope of this column, is whether the bill strikes the right compromise regarding information relating to national security -- which it treats differently from other confidential information.)

In this column, I'll argue that the current, broad definition of a journalist is the right one, and that proposed limitations to the bill should not be adopted.

The Previously-Proposed Limits on the Bill's Coverage Are Unworkable and Unfair

Currently, the bill has one, simple limitation to its coverage: It only covers persons with the intent to disseminate information to the public at the time the information at issue was gathered. This limitation is a sensible and necessary one.

The reason for this limitation is to prevent those who receive subpoenas from deeming themselves, in retrospect, to be journalists in order to invoke the law, when, in fact, they never meant to use the information for journalistic purposes. Without such an exception, the shield law would essentially swallow all the background rules of subpoena practice, rendering every subpoena fight also a shield-law fight.

However, in the Judiciary Committee, Senators Dianne Feinstein (D-CA) and Dick Durbin (D-IL) proposed three further limitations to the bill's coverage: (1) Only employees of a media outlet (salaried or nonsalaried) would be covered; (2) those who write anonymously would not be covered; and (3) only those disseminating information through a "news medium" – defined to exclude some electronic media – would be covered.

Fortunately, none of these exceptions was incorporated into the bill, for none of them is justifiable. And none of the three should be revived, as the bill is considered by the full Senate.

Any Attempt to Privilege the Traditional Media Ignores Recent History

To begin, the first and third proposed limitations completely ignore the fact that -- with traditional media embattled due to the loss of advertising revenue -- nontraditional media will play an ever-more-essential role in breaking important stories.

To exclude the self-employed from media-shield-bill coverage would thus both leave a veritable army of freelancers and bloggers out in the cold, and chill important reporting.

The first and third proposed limitations would also ignore the fact that one major way that new and/or young writers may end up writing for an established media outlet in the first place, is to be able to present clips of (or links to) excellent past writing they have done on their own. Yet if that prior reporting is unprotected, its quality may suffer.

In essence, these limitations condescend to young or "outsider" reporters by suggesting that they can only be trusted if they work under supervision, or if they have already broken in. But many such reporters not only will be entirely trustworthy, but also may have the courage and innovative perspectives necessary to break stories that the traditional media ignores.

These are also the reporters who may most need a crystal-clear, no-exceptions shield law – for they may need to proceed pro se in court, without the deep pockets of a media institution to back them, or its prestige to draw from.

Courts will doubtless feel more hesitant to jail a New York Times reporter – whose arguments will be supported by superb briefs from a top law firm – than a solo blogger who must depend on the kindness of public interest law groups, or else represent herself.

Anonymous Speech Is Constitutionally Protected – and Often Both Yields Vital Information and Needs Legal Protection

The final proposed limitation on the bill, as noted above, would exclude anonymous speech. But this limitation, too, makes little sense. It also specially burdens and targets the exercise of a constitutional right – the First Amendment right to write anonymously, as established in McIntyre v. Ohio Elections Commission. (Interested readers may want to consult this column by Michael Dorf for further information regarding the right to speak anonymously, in the context of a question now before the Supreme Court: whether petition signatures relating to referenda can be kept anonymous.)

In addition, it seems bizarre, as a policy matter, to seek to withhold the reporter's shield from anonymous writers, since this class of speakers may include those with the most revelatory and valuable information. Suppose, for example, that a blogger offers an anonymous expose of organized crime in his or her city, depending for her information on sources to whom she has promised confidentiality because they fear for their lives if their identities are revealed. The very reason she chose to remain anonymous is the same reason she (and her sources) need and deserve the protection of the reporter's shield. (My prior column about the Wikileaks website – a site that invites anonymous leaks – offers more evidence of the value of protecting anonymity.)

In sum, it is very good news that the Senate is seriously considering passing the federal reporter's shield law – a law that America has needed for so long. But that bill should pass without any amendments that attempt to either restrict it to traditional media, or leave anonymous speakers out in the cold.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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