Back to square one, 34 years later

From the Fall 2004 issue of The News Media & The Law, page 1.

It's time to start campaigning (again) for a federal shield law.

As our cover story describes, 2004 has seen a spate of subpoenas served upon reporters that eclipses even the dark, turbulent days of the Nixon Justice Department.

When Vanessa Leggett was jailed in 2001 in Houston for refusing to testify before a federal grand jury, minor rumblings were heard in some newsrooms and in Washington about the need for a federal shield law. But the big guns in the media business were ambivalent about the need to recognize a federal privilege for reporters to keep information confidential.

Times certainly change when you have almost a dozen reporters from major news organizations cited for contempt over one summer. Nearly every major media company in the country is fighting at least one subpoena from a federal prosecutor.

Newspaper Association of America President John Sturm told me the other day that the shield law issue has risen to the top of his organlegislative agenda. Even ahead of postal rates. (Forgive the attempt at publisher humor.) The point is this: It’s been more than 30 years since the nation’s media leaders were galvanized in support of a federal reporters privilege.

The Reporters Committee file room is a dusty treasure trove of historical information about principled reporters who have refused to serve as government investigators. That’s no surprise since the Reporters Committee was started in 1970 by Washington and New York reporters who were alarmed by the lack of publisher support for protecting confidential sources. Reporters Committee founders Jack Nelson, Fred Graham, Murray Fromson and others met in support of former New York Times reporter Earl Caldwell, who was being pressured to reveal confidential information from his stories about the Black Panthers. These days there is no question of The New York Times supporting its reporters. Back then, it wasn’t so clear.

In June 1972, the U.S. Supreme Court handed down its decision in Branzburg v. Hayes, which joined three cases, including Caldwell’s, into one major case involving a reporter’s right to refuse to testify before a federal grand jury. The high court said there was no privilege under the circumstances presented in the Branzburg cases.

By September of 1972, at least six bills were pending in the U.S. House of Representatives that provided varying degrees of privilege for reporters. Between 1973 and 1978, 99 bills were introduced in the House or Senate supporting a “newsman’s privilege.” None won passage.

Our analysis of the record indicates that the primary reason the attempts at a shield law in the 1970s and similar efforts in the mid-1980s were unsucwas because journalists and their lawyers were unable to agree on what they wanted. Must any federal law provide an absolute privilege from compelled disclosure (the traditional Reporters Committee position) or is a qualified privilege an acceptable compromise? Who do we consider to be a journalist? If we go to Congress asking for a privilege, will lawmakers use it as an excuse to legislatively regulate the press?

If we’ve learned anything in 30 years, hopefully it’s that any attempt at legislation must be better organized, better funded and inclusive of print, broadcast and new media voices.

In my almost five years at the Reporters Committee, I’ve come to know newsroom leaders, industry owners, journalism association presidents, media lawyers and — most importantly — hardworking reporters. I think we can do it.