Congress is considering a federal shield law that would supposedly create a "reporter's privilege," protecting journalists from revealing their sources even when they were subpoenaed as part of a grand jury investigation. Editorials by Attorney General Mike Mukasey and Senator Arlen Specter have recently appeared, with Mukasey in opposition and Specter in favor.
Both the editorials miss the point entirely, opting for grandstanding and fear mongering instead of anything resembling useful analysis.
Mukasey says that terrorists are going to attack your children if reporters don't divulge their sources. Specter, the bill's sponsor, maintains that journalists are the only thing keeping democracy from crumbling into dictatorial tyranny. Every journalist on the planet has lined up behind him to offer biased testimony as to how vitally important they are.
I'm shocked that no one has seemed to notice that this bill won't give journalists a single iota of added protection. In fact, it is very likely that the bill will actually harm the so-called "free flow of information."
If you actually read the bill, it does begin by granting widespread freedom to journalists. But there are exceptions-- a whole lot of them. In essence, the bill says that journalists are totally exempt from divulging their sources... unless, of course, withholding the information might compromise a criminal trial. Or civil discovery. Or national security. Or if non-disclosure might result in death, kidnapping or bodily harm. Or if it affects the prevention of terrorism. Or...
You get the idea. By the time Specter finished making exceptions, he left us with the exact same doctrine created over thirty years ago by the Supreme Court's 5-4 decision against the existence of a reporter's privilege in Branzburg v. Hayes.
In paraphrasing the Branzburg decision, four justices clearly believed that there was no such thing as a reporter's privilege. Four of them believed there was. And then there was Justice Lewis F. Powell, a man few would describe as decisive. Powell sided with the majority, but confused matters by writing a separate opinion stating that a reporter's privilege existed but was not absolute:
"[The reporter's privilege] should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions."
The Branzburg decision represents a fairly rare occurrence in constitutional law: Justice Powell's concurrence, not the majority opinion, has become Branzburg's legacy. Although the journalists in that case were forced to give up their sources, a considerable number of courts have cited Justice Powell's opinion in upholding a limited reporter's privilege. See US v. Smith, 135 F.3d 963 (5th Cir. 1998), Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), In re Shain, 978 F.2d 850 (4th Cir. 1992); US v. LaRouche, 841 F.2d 1176 (1st Cir. 1988); U.S. v. Caporale, 806 F.2d 1487, (11th Cir. 1986).
In other words, the reporter's privilege exists under current law, but it must be balanced with the need to uphold important state functions, i.e., when a "compelling state interest" can be shown. That should sound familiar, because it's essentially the same concept embodied in Specter's bill.
The support and perceived need for this bill undoubtedly grew out of the Judith Miller saga a few years ago. It is important to note that this bill, even if it had been in place at the time, probably wouldn't have changed anything. Miller's source outed an undercover CIA agent-- it wouldn't have been very difficult to convince a judge that finding the rat was a compelling state interest. Moreover, it probably wouldn't have protected the journalists who were at the center of the Branzburg case.
Specter's bill would simply take Justice Powell's ambiguous common law doctrine and codify it into federal statutory law. And that's why it is a bad idea.
In the common law, nothing is black and white. Rather, the common law is a mosaic of various shades of gray-- often with loopholes and wiggle room galore. It is the piecemeal result of thousands of court opinions handed down from a philosophically diverse group of minds. In common law matters, the answer to any given legal question is never simply 'Yes' or 'No,' but it always 'It Depends.'
The ambiguity benefits journalists. It at least gives them a fighting chance. If nothing else, Powell's opinion and the subsequent decisions offer ammunition for a defense attorney to stage his Waterloo. Specter's bill would compromise, if not completely eliminate, that fighting chance.