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Why The Reporter's Shield Law Pending Before Congress Should Be Approved, But Not Before the Blogger-as-Reporter Issue Is Expressly Addressed


Wednesday, Aug. 08, 2007

Last week, the proposed Free Flow of Information Act of 2007, H.R. 2102, was voted out of the House Judiciary Committee. The legislation, if enacted, would create a federal privilege for journalists to protect their confidential sources, in the face of courts' or prosecutors' demands that they testify about (or otherwise disclose) the source's identity, or face jail.

I will argue, in this column, that the proposed federal reporter's privilege law should be enacted. However, I believe that before this occurs, Congress should seriously consider expanding the definition of "reporter" to expressly include bloggers.

A Proposed Privilege that Is Qualified, and Contains a National-Security Exception

The privilege the Act would create is not absolute. Its application would be resolved on a case-by-case basis, based on a balancing of the government's interest in disclosure against the media's interest in preserving its ability to offer confidentiality to sources speaking on matters of public interest. In the criminal context, in particular, the law looks to whether the information sought to be shielded is "essential" to the investigation, the prosecution, or the defense (in which case, Sixth Amendment fair trial rights would be implicated).

In addition, the proposed legislation contains a specific exception for an actual, imminent danger to national security or public safety (as well as other exceptions for certain categories of information). Thus, any extreme hypothetical where the journalist is protecting a source who is, say, a terrorist or a criminal on the loose and about to wreak havoc is ruled out by the Act's own terms.

Nevertheless, interesting hypotheticals that might fall within the statute remain: For example, in the Plame scandal, imagine that Joseph Wilson had disputed President's Bush's claims that Saddam Hussein had sought uranium in Africa on the eve of the Iraq invasion, not four months afterwards. And imagine also that Wilson, rather than writing about it as a bylined New York Times OpEd writer, had insisted on being a confidential source for an article written by a Times reporter. If the new reporter's privilege law had been on the books, could its "national security" exception have been employed to out Wilson?

One could argue that undermining the President's war rationale just before a military action imminently threatens national security. Or, conversely, one could argue that there is no worse threat to national security in a democracy than basing an invasion upon a lie to drum up support for it, especially when the invasion will harm America's image and its citizens' security at home and abroad.

Hypotheticals like this one suggest that if the law is passed, the national-security exception's boundaries may well be tested someday.

The Need for Uniformity on Reporter's Shield Issues

Currently, some reporter's privileges are creatures of state statute; others are derived by state courts from the state and/or federal constitution's free press guarantees. Meanwhile, federal courts in cases raising federal questions tend not to apply any privilege at all.

It's plain that there should be federal law on the reporter's privilege issue. Otherwise, reporting is undermined by the variation among state-law reporter's privileges -- which creates uncertainty and imposes unnecessary costs on the media organizations who must counsel their reporters on how to navigate a varying and constantly changing legal web, and then defend those reporters when litigation arises to challenge the invocation of the reporter's privilege.

These kinds of costs not only burden the freedom of the press, they may chill speech as well: If a confidential source cannot be promised legal protection with a high degree of certainty, and will not consent to having his or her identity revealed, it's possible an important story will never see the light of day. Reporters want to be able to tell the source that he or she definitely - not possibly - will be protected; the federal law could give them confidence to say this accurately in many situations.

A federal reporter's privilege would provide a simple, uniform rule. It would also recognize the nature of modern reporting -- in which a particular article may cite sources from a variety of states. Even local or state-level issues may have national import and should enjoy the protection of a federal privilege. Moreover, Internet news sources are only physically tied to a particular state through the location of their servers or the incorporation of the company that runs them; their reach is national. When the issues reported in the media so often cross state borders, it makes no sense for reporter's privilege issues to be resolved state-by-state.

In addition to these more general and abstract reasons for a federal reporter's privilege, the ACLU contends persuasively that such a privilege is crucial now. An ACLU report points out, for example, that a significant number of journalists have been jailed for contempt of court for their refusal to reveal confidential sources. The cited journalists spend longer periods in jail. And accusations fly that by refusing to reveal sources, journalists -- rather than upholding the freedom of the press -- are actually committing a crime -- even "treason."

Why the Blogger-Journalist Issue Is Important

The Act's definition of the persons it protects is fairly reasonable: It covers both "a person engaged in journalism" and "a supervisor, employer, parent, subsidiary, or affiliate" of such a person.

"Journalism" is defined, in turn, as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public."

Personally, I would read these definitions to apply to bloggers, but it's very possible courts may not. In past cases, journalists without traditional credentials have been denied the coverage of the privilege. One example is Vanessa Leggett, whom I discussed in a prior column. Though her interviews occurred in the course of research for a nonfiction book, she served 168 days in jail because a court - unreasonably, in my view - would not deem her to be a journalist.

Another example is blogger and independent journalist Josh Wolf, who was imprisoned from August 1, 2006 to April 3, 2007. Wolf reported on protests and progressive events from the viewpoint of advocacy, through video that then appeared on the Internet, rather than purporting to offer neutral coverage. He is often referred to as a "video activist." Would he necessarily be deemed to have engaged in "journalism" under the proposed Act? Or might a conservative court see him as more agitator than journalist?

Adding a brief sentence to the statute -- "'Journalism, as defined for these purposes, need not be conducted by members of the traditional news media, but also may be an enterprise engaged in by paid or unpaid citizen journalists, including those who post their work on websites on the Internet" - may save a future Leggett or Wolf many months in jail. For that reason, it's very much worth adding.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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