Should the courts honor reporters shield laws

Erwin Chemerinsky

The outrage of putting two reporters in jail for 18 months for keeping their sources confidential should finally provoke Congress into adopting a law protecting reporters who keep their sources confidential.

On Thursday, a federal judge in San Francisco sentenced reporters Lance Williams and Mark Fainaru-Wade to jail for refusing to disclose who leaked to them secret grand jury testimony concerning the investigation of steroid abuse and the Bay Area Laboratory Cooperative (BALCO).

Putting these reporters in jail serves no purpose other than to chill investigative reporting that informs the public about important social and political issues. Reporters often need to rely on confidential sources.
Perhaps most famously, the Watergate scandal never would have been uncovered except for Washington Post reporters Bob Woodward and Carl Bernstein promising confidentiality to “Deep Throat” who repeatedly provided crucial information.

Likewise, Williams and Fainaru-Wade needed a confidential source to provide information for a series of articles and a book that revealed the extent of steroid abuse in baseball and other sports. Their revelations helped to spur baseball to adopt a long-needed drug-testing policy.

Unfortunately, in 1973, the Supreme Court, in a 5-4 decision, held that the First Amendment does not protect the right of reporters to keep their sources confidential. Justice Byron White’s opinion for the majority rejected the claim that reporters need confidentiality in order to get and tell important stories.

The response was that states across the country adopted statutes protecting the secrecy of reporters’ sources in state court proceedings. Such statutes can provide more protection of rights than the Constitution. Thirty-one states and the District of Columbia adopted “shield laws” that protect reporters from being punished for not revealing their confidential sources. However, there is no such federal shield law, which means that in federal courts across the country reporters have no protection from being forced to disclose their confidential sources or being sentenced to jail.

For many years, this was not a serious problem, as federal prosecutors refrained from trying to send reporters to jail and as lower federal court judges interpreted the 1973 decision to allow some protection for reporters. In the 5-4 decision, Justice Lewis Powell, who voted with the majority, wrote a separate concurring opinion saying that courts should balance the courts’ need for the information against the costs to the public’s right to know.

Many lower courts used this balancing test to protect reporters. But in recent years, federal prosecutors have sought jail time for reporters who keep their sources secret. Also, federal judges have rejected a balancing approach and have flatly rejected any protection for reporters seeking to keep their sources confidential.

The result has been reporters being put in jail for refusing to disclose their confidential sources.

Last year, for example, Judith Miller, then a New York Times reporter, spent several months in jail for refusing to reveal her confidential sources in the investigation of who disclosed that Valerie Plame was a secret CIA operative. The federal courts for the District of Columbia rejected any First Amendment protection for reporters in the investigation.

Everyone is the loser when reporters are put in jail for not disclosing confidential sources. Other reporters will be more reluctant to promise confidentiality to sources. Important stories won’t get written. Whistleblowers exposing corruption in the government and private industry will be less likely to come forward without assurances of confidentiality. Law-enforcement agencies will be the losers, too, as often reporters can expose criminal activity that the agencies don’t know about.

Hopefully, the federal judge, Jeffrey White, who sentenced Williams and Fainaru-Wade to jail, will reconsider their punishment. Nothing in the law requires that he put these reporters in jail. Failing that, the hope must be that the federal court of appeals will reverse Judge White and follow the approach of Justice Powell by concluding that the public’s right to know outweighs the need to find out who leaked the grand jury transcripts.

But the real solution must come from Congress. A bipartisan bill is now before the Senate Judiciary Committee to provide reporters the ability to keep their sources confidential. Such shield laws have worked well in state courts for decades. It is long overdue for Congress to provide this protection for reporters in federal courts.

The reality of Williams and Fainaru-White being behind bars for doing their job and informing the public should finally be the impetus for this law to protect all of our right to know.

Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke University.

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