In his recent op-ed, Yale Law Professor Stephen L. Carter concludes that a reporter’s shield law is a “bad idea” that “might change the status quo only a little.” Carter assumes that even without a shield law, “most prosecutors are too savvy to go after journalists.”
If only that were true.
Since 2001, five journalists have been sentenced or jailed for refusing to reveal their confidential sources in federal court. Two of these journalists were sentenced to 18 months in prison and an additional journalist faced up to $5,000 a day in fines, which could not be reimbursed by the employer, family or friends. From 2007 to 2009, the most recent year for which numbers are available, the Justice Department’s Criminal Division issued 19 subpoenas to the media, though studies indicate the number is far higher.
Federal prosecutors can easily subpoena journalists’ confidential information because no federal statute protects reporters. (In contrast, 49 states and the District of Columbia have enacted shield laws or have common-law protections for journalists.) If a prosecutor or civil litigant subpoenas a journalist’s sources in federal court, the journalist must rely on a relatively weak First Amendment privilege that some courts do not recognize at all.
For this reason, more than 50 media organizations have formed a coalition to support a federal shield law in the past week, including most newspaper publishers, television networks, and the associations for the newspaper, broadcasting and magazine publishing industries. Reps. Ted Poe, R-Tex., and John Conyers, Jr., D-Mich., have introduced H.R. 1962, and Sens. Charles Schumer, D-N.Y., and Lindsey Graham, R-S.C., have introduced S. 987. Although the bills differ in scope and detail, they both would provide unprecedented protection for journalists and prohibit compelled disclosure of confidential information unless an independent federal judge determines that disclosure is necessary.
Carter mischaracterizes the proposals, stating that they “say only that the government can’t subpoena documents or testimony from journalists until it has exhausted other reasonable means of getting the same information.” Both bills do contain an exhaustion requirement, but that is only the starting point. The bills also require the court to balance the need for the information against the public interest in maintaining confidentiality. Moreover, the legislation only allows subpoenas that are narrowly tailored, preventing the government from engaging in fishing expeditions.
Carter also opposes the shield law because he claims that it only applies to journalists who “regularly” gather, report, or publish information “for a substantial portion of the person’s livelihood of for substantial financial gain.” He argues that this definition excludes unpaid bloggers and drives “a fully informed and rational leaker to go to a reporter for a mainstream media organization rather than to a blogger or a law student.”
There are several flaws with this argument. First, Carter relies on a 2011 version of the bill that has not been introduced this session. The current Senate bill covers journalists regardless of whether they are compensated, and the current House bill covers people who engage in journalism “for financial gain or livelihood” (but not for substantial gain or livelihood). And these definitions are the starting point for the legislative process, during which concerns such as Carter’s can be taken into account. And frankly, even the 2011 bill on which Carter relies would be a dramatic improvement for journalism.
Although the Internet has enabled citizen journalism, the vast majority of in-depth, investigative reporting that is likely to be the subject of a federal subpoena occurs at professional news organizations.
Like other critics of the shield law, Carter manufactures reasons to oppose the legislation. The simple fact is that there is no valid reason to deny predictable and reasonable protections for journalists. The recent surveillance of more than 100 Associated Press journalists demonstrates that a federal shield law is long overdue. Federal judges, not prosecutors, should determine whether the reporters should divulge their confidential sources.
Kurt Wimmer, a partner at the law firm of Covington & Burling LLP, where he is the chair of the US Global Privacy and Data Security practice and co-chair of the firm’s Media, Internet and Technology industry group.