Commentary: U.S. Senate should pass the shield law

Daily Record, The (Baltimore), Sep 2, 2008

When Congress returns from its August recess next week, members of the U.S. Senate will consider the Free Flow of Information Act of 2008 to provide journalists with a testimonial privilege in federal court. This "shield law" will allow reporters to protect the confidentiality of their news sources without fear of being held in contempt. We urge the Senate to approve the legislation with enough votes to override an expected veto.

The House of Representatives passed similar legislation last October by a vote of 398-21, including the unanimous support of Maryland's congressional delegation. Both Maryland senators voted to consider the bill before the recess, but could not break a Republican filibuster on a pending energy bill. That procedural vote does not accurately reflect the strength of Senate support for the "shield law" on its merits, and we believe a veto-proof majority is still possible.

The testimonial privilege for journalists is a time-honored tradition in Maryland, which enacted the nation's very first state shield law in 1896. The General Assembly enacted the law after a Baltimore Sun reporter went to jail for refusing to disclose the source of his story on corruption among city politicians and police. Maryland's pioneering law was the only one of its kind for nearly 30 years, but now every state except one recognizes a testimonial privilege for journalists through statutory enactment or judicial decision.

There was little need for a federal privilege until the Nixon Administration's Justice Department dramatically increased the number of subpoenas issued to journalists covering anti-war activists and other radical groups. A grand jury investigation of the Black Panthers in California ultimately brought the issue to the U.S. Supreme Court. The sharply divided court ruled in 1972 that, although the First Amendment afforded some protection for newsgathering, it did not prevent a federal grand jury from compelling journalists' appearance and testimony. If Congress wanted to extend such a privilege, the court said in Branzburg v. Hayes, it was certainly welcome to do so.

Congress took up the invitation, holding hearings the very same year. But the press was unable to overcome differences within its own ranks as to the desirability and scope of a federal shield law, and the federal legislation languished. Nevertheless, state after state joined Maryland in protecting the vital relationship between journalist and source. Several federal circuits have also afforded journalists a qualified privilege, taking advantage of Branzburg's ambiguities and its explicit, if undefined, finding of First Amendment protection for newsgathering.

In recent years, however, the need for a federal privilege has become increasingly apparent, as more and more high-profile cases have demonstrated the absurdity of jailing reporters for doing their job. The New York Times' Judith Miller spent 85 days in jail for refusing to name Scooter Libby as the source of her story "outing" Valerie Plame as a CIA officer. Former USA Today reporter Toni Locy was ordered personally to pay $5,000 for each day she refused to reveal her source in the Steven Hatfill (anthrax "person of interest") libel case. Independent blogger Josh Wolf spent 226 days in jail for refusing to hand over a video recording of a 2005 San Francisco riot. And the list goes on and on.

We understand the public's ambivalence toward a testimonial privilege. Unfortunately, the press has become "the media" in the public's eyes, and the media regularly challenge the President and Congress for the lowest approval ratings. Elected officials, legal scholars and judges often criticize the press for demanding "special privileges," and that sentiment is by no means new. Even the venerable Professor Wigmore called Maryland's original 1896 law "detestable" and contrary to the "fundamental maxim that the public is entitled to every man's evidence."

Testimonial privileges -- priest-penitent, psychotherapist- patient, attorney-client -- also deprive grand juries and congressional committees of evidence. But they protect other important interests. Citizens are free to speak candidly to their priests, doctors and lawyers. Likewise, few would doubt the value of confidential sources like the Washington Post's "Deep Throat," whose guidance led to the discovery of the Watergate web of political corruption and, ultimately, the resignation of President Nixon. Without confidentiality, such sources are unlikely to come forward. Surely the public interest is ill-served by the jailing and fining of conscientious journalists for aggressively collecting and reporting the news.

Not an absolute privilege

The concerns of the critics are not trivial. The cost of protecting reporters' sources may be a prosecution foregone or a malicious leak. But the proposed privilege is not absolute. Disclosure can generally be compelled where alternative sources have been exhausted, the testimony is essential and the public interest demands it. Apparently, that is enough for most of the nation's chief law enforcement officials.