William E. Lee, a professor of telecommunications in UGA’s Grady College of Journalism and Mass Communication, recently published an article in the Cardozo Arts and Entertainment Law Journal in which he questioned the validity of a First Amendment-based reporter’s privilege and advocated that Congress enact a federal shield law.
In this interview with Columns, Lee discusses the protection of confidential relationships between journalists and sources.
Columns: Why do journalists need to protect the identity of their confidential sources?
Lee: Journalists claim that they receive newsworthy information from sources who will not offer the information unless their identity remains a secret.
Likewise, compelled disclosure of a source’s identity, such as before a grand jury, can cause sources to dry up. If sources dry up, the flow of information to the public will be reduced.
There is, however, another side to confidential sources. Powerful government officials often hide behind confidentiality to smear their political opponents.
This appears to be the case involving leaks concerning Valerie Plame, a CIA employee who is married to Joseph Wilson, a critic of the Bush Administration. White House officials leaked information about Plame to several journalists, apparently as a way of discrediting her husband.
Columns: Journalists such as Judith Miller of The New York Times and Matt Cooper of Time were forced to testify before a federal grand jury investigating the Plame leak. Doesn’t the First Amendment protect the confidentiality of journalist-source relationships?
Lee: In 1972, the U.S. Supreme Court in Branzburg v. Hayes ruled that journalists do not have a First Amendment-based privilege to refuse to testify before grand juries.
Media lawyers responded to Branzburg by claiming that Justice White’s opinion for the Court was very limited and the crucial opinion was Justice Powell’s concurring opinion, which implied that some form of reporter’s privilege should be recognized.
Since then, a number of lower courts have offered limited protection to reporter-source relationships. These rulings gave reporters the illusion that their First Amendment protection was strong when it actually was a house of cards waiting to be toppled.
In recent years, the judicial mood has shifted away from creative readings of Branzburg. The frequency with which judges are now allowing the questioning of journalists should be sobering to journalists who believe in a phantom First Amendment privilege.
Columns: Are there shield laws that protect journalists?
Lee: Currently there is no federal shield law. A majority of states have enacted shield laws, but these laws vary widely. Some states offer absolute protection, some offer qualified protection. Some states broadly define “journalists” while other states narrowly define the protected class.
A common complaint of journalists is that the rules of the road are very confusing as they try to negotiate confidentiality agreements with sources.
A conversation with a source may be absolutely protected in Alabama legal proceedings, but that same conversation may not be protected in federal proceedings. With last summer’s incarceration of Judith Miller, the issue is again before Congress. The federal proposals currently being considered are deeply flawed.
Columns: How so?
Lee: When a journalist and source are negotiating a confidentiality agreement, both sides need to know whether their communication will be privileged, that is protected against forced disclosure.
In a variety of settings, such as physician-patient and lawyer–client communication, courts have recognized that privileges are worthless if the parties can only guess about their legal protection.The proposals currently before Congress would allow a court to compel a reporter’s testimony if the harmfulness of leaked information outweighs its news value. Harmfulness and news value are extraordinarily subjective and place a reporter and source in a guessing game about how a court might later assess the privilege.
Columns: Would an absolute privilege solve this problem?
Lee: Some states have enacted absolute privilege statutes, but there is little political support for this in Congress. The commonly held belief in Congress is that an absolute privilege would hamper the government’s ability to investigate criminal activity, especially relating to terrorism.
So the alternative is to create a conditional privilege. Instead of defining the privilege in subjective terms, as Congress is proposing, I advocate that a conditional privilege should be clear cut. For example, a reporter-source relationship would be privileged unless the reporter witnessed the source committing a crime.