The world of online journalism fluttered a bit last week when the Court of Appeals for the District of Columbia decided that the journalists subpoenaed in a federal investigation of the leaking of the name of a CIA agent in 2004 did not have any privilege to shield confidential sources. In a concurring opinion, Judge David Sentelle mentioned web logs and “bloggers” in his discussion of the problem of defining a journalist.
“ . . . does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not?” Sentelle asked.
He seemed to be saying yes – at least by implication – and the blogging world is happy (in general). Finally, some legal, if not professional, recognition.
But that was not Sentelle’s point, of course.
Sentelle was taking on the very interesting (and, in his word, “vexing”) question that arises when journalists want or claim a shield for protecting confidential sources: Just who is a journalist? Who can claim protection, and who cannot?
Those who say there should be a privilege for journalists base their argument on the First Amendment. That portion of the U.S. Constitution grants freedom of the press, and by extension, the press needs to be given the tools to exercise that right properly. Journalism cannot be effectively practiced without being able to guarantee to assure sources that their identities will not be revealed.
The problem is, as Sentelle and others have pointed out, that freedom of the press is a fundamental right granted to all citizens – not just journalists. If you base an argument for a privilege on the First Amendment, you cannot limit it to just journalists. It must be extended to all citizens. Sentelle thus concludes that it would be very difficult to grant journalists a privilege because this problem cannot be resolved.
(The relevant part of Sentelle’s opinion is below, and the court’s entire opinion can be downloaded from this site as a PDF file. It’s 83 pages.)
It would be easy enough to accept this logic, throw up our collective hands and walk away from the problem. But the problem itself does not go away. Journalists do need, at times, to protect their sources. The public is well served by this practice, and many states have recognized this need and fashioned laws granting this privilege. Many of these laws make an attempt to define a journalist. Sentelle cites some of these definitions in his opinion. He shows how varied the definitions are.
Many other parts of the law deal with what may seem to be irresolvable conflicts. Yet, because it is necessary to deal with these problems, the law has to come down somewhere on these issues. We simply cannot walk away from them.
The fact that we have not yet come up with a clean and discrete definition of a journalist should not be used as an argument against journalistic privilege. We are unlikely to ever produce such a definition that will be logically bulletproof and acceptable to all. Yet the interest of the journalist and ultimately the public is compelling, and we must continue to try.
Jim Stovall (Posted Feb. 19, 2005)
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Update: Michael Kinsley’s Sunday column (Feb. 20, 2005) has a different take on this issue (when should a promise of confidentiality be made, not who is a journalist) but comes to the same conclusion: It is in the public’s interest to try to figure this out so that journalists do have some protection.
The constitutional freedom of the press does not depend on giving journalists immunity. The case for journalists’ privilege is that society in general benefits from a vigorous investigative press, and anonymous sources are essential to that. When individual rights come at a cost to society as a whole, it is a cost we are proud to pay — within reason. But when both sides of the equation are the interests of society generally, it is only sensible to weigh them against each other.
Very often the social benefit of encouraging whistleblowers would win such a balancing contest. But journalists mistakenly see the privilege as their right and refuse to contemplate such a balance. Or they assert the authority to weigh the considerations themselves, which seems even more arrogant.
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Update: The question of who is a journalist is playing out in a different way and in a different courtroom. A New York Times story by Jonathan Glater describes the issue in a California lawsuit where Apple is suing a blogger for publishing inside information about its products. The blogger is claiming protection of his sources under California’s shield law. Should the judge rule that the blogger can be considered a journalist, it would open up the shield privilege for many people not working for traditional media outlets such as newspapers and television stations. The story says a ruling could come on this as early as this week. (Posted March 7, 2005)
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Judge David B. Sentelle of the Court of Appeals for the District of Columbia:
The statutes differ greatly as to the scope of the privilege, and as to the identity of persons entitled to the protection of the privilege.
We have alluded in the majority opinion to the differing decisions of courts as to civil, criminal, and grand jury proceedings. There is also a more fundamental policy question involved in the crafting of such a privilege.
The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it
“necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
408 U.S. at 704. The Supreme Court went on to observe that “freedom of the press is a ‘fundamental personal right . . . not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’” Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?
The state legislatures have dealt with this vexing question of entitlement to the privilege in a variety of ways. Some are quite restrictive. Alabama limits its protection to “person[s] engaged in, connected with, or employed on any newspaper, radio broadcasting station or television station, while engaged in a newsgathering capacity.” ALA. CODE § 12-21-142. Alaska’s statutes protect only the “reporter,” a category limited to “person[s] regularly engaged in the business of collecting or writing news for publication or presentation to the public, through a news organization.” ALASKA STAT. § 09.25.300. The statutory privilege in Arizona protects “a person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper or radio or television station . . . .” ARIZ. REV. STAT. § 12-2237. Arkansas’s legislature has declared the privilege applicable to “any editor, reporter, or other writer for any newspaper, periodical, or radio station, or publisher of any newspaper or periodical, or manager or owner of any radio station . . . .” ARK. CODE ANN. § 16-85-510. Delaware is perhaps the most specific, protecting a “reporter,” which
means any journalist, scholar, educator, polemicist, or other individual who either: (a) At the time he or she obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass 8 reproduction of words, sounds, or images in a form available to the general public; or (b) Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a.
DEL. CODE ANN. tit. 10 § 4320. Presumably, states such as these would provide the privilege only to the “established” press.
Others are quite inclusive. The Nebraska legislature, for example, has declared:
(1) That the policy of the State of Nebraska is to insure the free flow of news and other information to the public, and that those who gather, write, or edit information for the public or disseminate information to the public may perform these vital functions only in a free and unfettered atmosphere; (2) That such persons shall not be inhibited, directly or indirectly, by governmental restraint or sanction imposed by governmental process, but rather that they shall be encouraged to gather, write, edit, or disseminate news or other information vigorously so that the public may be fully informed.
NEB. REV. STAT. § 20-144. To that end, it protects any “medium of communication” which term “shall include, but not be limited to, any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.” Id. at § 20- 145(2) (emphasis added).
In defining the persons protected by that privilege, Nebraska tells us that “Person shall mean any individual, partnership, limited liability company, corporation, association, 9 or other legal entity existing under or authorized by the law of the United States, any state or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any foreign country.” Id. at 20-145(7). Presumably, then, Nebraska, perhaps more in keeping with the spirit of the recent revolutionaries who gave us the First Amendment, protects the pamphleteer at the rented printer, and the blogger at the PC, as well as the giant corporation with its New York publishing house.
The variety of legislative choices among the states only serves to heighten the concern expressed by the majority in Branzburg. See 408 U.S. at 704. This concern is reinforced by examination of the Jaffee decision, upon which appellants rely. In Jaffee, the Supreme Court extended a federal privilege “to confidential communications made to licensed social workers in the course of psychotherapy.” 518 U.S. at 15. There is little definitional problem with the application of this privilege. The court need only ask: Does this “social worker” have a license? If the answer is “yes,” then the privilege applies; if it’s “no,” the privilege does not. If the courts extend the privilege only to a defined group of reporters, are we in danger of creating a “licensed” or “established” press? If we do so, have we run afoul of the breadth of the freedom of the press, that “fundamental personal right” for which the Court in Branzburg expressed its concern? 408 U.S. at 704. Conversely, if we extend that privilege to the easily created blog, or the ill-defined pamphleteer, have we defeated legitimate investigative ends of grand juries in cases like the leak of intelligence involved in the present investigation?
Nor does the identity of the protected persons constitute the only difficult policy decision. Branzburg enumerates several concerns. For example, does “the public interest and possible future news about crime from undisclosed, unverified sources . . . take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future”? Id. at 695. Do “agreements to conceal information relevant to the commission of crime avail little to recommend them from the standpoint of public policy”? Id. at 696. What are we to do with the historic common law recognition of “a duty to raise the ‘hue and cry’ and report felonies to the authorities”? Id. (see also authorities collected in id. at 696 n.34). Should we be creating immunity from prosecution for “misprision” of a felony–that is, the concealment of a felony? Id. at 696.
Should the privilege be absolute or limited? If limited, how limited? Without attempting to catalog, I note that the state statutes provide a variety of answers to that policy question. Therefore, if such a decision requires the resolution of so many difficult policy questions, many of them beyond the normal compass of a single case or controversy such as those with which the courts regularly deal, doesn’t that decision smack of legislation more than adjudication? Here, I think the experience of the states is most instructive. The creation of a reporter’s privilege, if it is to be done at all, looks more like a legislative than an adjudicative decision. I suggest that the media as a whole, or at least those elements of the media concerned about this privilege, would better address those concerns to the Article I legislative branch for presentment to the Article II executive than to the Article III courts.
For all the reasons set forth above, I would hold that there is no common law privilege protecting reporters or any other news media personnel, no matter how defined, from the reach of grand jury subpoenas on claim of confidentiality.
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