Friday, April 18, 2008

Podcast: The Case for the Federal Shield Law

John McCain's endorsement this week of a federal shield law for journalists has given renewed momentum to the Free Flow of Information Act pending in Congress (S 2035). At the same time, the U.S. Department of Justice has renewed its offensive against the bill with the launch of a special section of its Web site devoted to its opposition and an op-ed in USA Today by Attorney General Michael B. Mukasey. The debate takes on greater urgency as former USA Today reporter Toni Locy awaits word from a federal appeals court on whether she will be forced to pay contempt fines of $5,000 a day for protecting her sources.

We discuss the journalists' privilege and the need for a federal shield law in this week's episode of the legal-affairs podcast Lawyer2Lawyer. Joining my co-host J. Craig Williams and me as guests on the program are three experts in constitutional and media law:

In the program, we discuss the federal bill, high-profile cases involving reporters, states’ efforts to enact their own shield laws, and the rights of journalists and bloggers. The program can be streamed or downloaded from this page.

You can stay up to date with all Lawyer2Lawyer programs by subscribing via RSS or through iTunes.


Kerry said...

As a student at MTSU who is studying media law, I find this to be an issue that needs a resolve. Journalist need to be shielded, but there are limits (pedophiles, murderers, rapists etc..) when protecting a source. John McCain has been advised well. Support a federal shield law and just about every journalist in the nation will speak highly of him in this year’s election. Will he still support a shield law after he is elected president, if an investigative reporter uncovers a sex scandal that happened in McCain’s past?

It is interesting to note that after the Supreme Court’s ruling in Branzburg v. Hayes (1972), Congress introduced 167 bills within five years of Branzburg and not one was enacted. Sen. Sam Erin Jr. notes that Congress did not get support from the media on any of these bills because an absolute privilege for journalist was politically impossible. Journalist also realized that any law that gave privilege could lead to more legislative regulation of the press. You cannot have your cake and eat it too. It is like reporting someone for fraud to the IRS: you want to report illegal activity, but you are afraid that they will audit you instead. Is there a “Catch 22” here?

After the Branzburg case, most courts have protected journalist, but that has changed under the current administration. A most notable case was the Fifth Circuit’s 2001 unpublished decision regarding author Vanessa Leggett. The court upheld her jailing due to the lack of support of a journalist’s privilege, and it didn’t matter whether the information was confidential or not.

The recent case involving New York Times reporter Judith Miller and Time magazine reporter Matt Cooper began an attempt to enact a federal shield law. Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) introduced the first reporter’s shield law since 1983. The current Spector bill (Free Flow of Information Act of 2006), has one problem. It defines a journalist as someone who makes money at practicing journalism. This would not help someone like me: a student journalist.

This should be a lively discussion, with lawyers and journalist presenting both sides of the issue.

Katie said...

Is it by sheer coincidence that John McCain has chosen to endorse a federal shield law? I think not. Through this clever political strategy, it is possible McCain will gain support from formerly critical journalists. From this much-wanted positive criticism, McCain advisors can expect positive feedback in political polls. Whether or not McCain will continue to support a federal shield law if elected is unknown.

It’s hard to understand why a federal shield law is not currently in place. There are sixteen states with no shield laws; sixteen states that provide no protection to reporters wishing to keep his or her source confidential. While other states do possess source protection, the specific laws vary. In the 1972 preliminary shield case of Branzburg v. Hayes, the Supreme Court ruled in a five to four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. This ruling, however, did not set a clear guide in regards to privileges from revealing confidential information, and therefore, continues to be interpreted differently by courts. Implementing a federal shield law with journalists rights clearly defined could potentially do away with the many inconsistencies that exist from state to state.

In recent years, a number of bills for federal shield laws have been proposed, yet none have received committee approval. As Kerry previously mentioned, following the Branzburg v. Hayes case, 167 bills were introduced to Congress, and not one was enacted. Because absolute privilege could lead to more legislative regulation of the press, the media has been hesitant to support such bills.

In recent years, following the CIA Leak Scandal of 2003, journalists have begun to push for a federal shield law. Currently, the Free Flow of Information Act, which houses a federal shield law, is pending in Congress. The sudden interest from Presidential candidates brings much debate over the necessity and likelihood of such law. Whether or not such privileges will be deemed Constitutional is currently under debate.