Media Shield Law Remains in Doubt
By HOPE YEN
Associated Press
March 17, 2008
Page 2 of 3
Goodale, who represented The New York Times as its general counsel in the Pentagon Papers case, is the architect of the news media's largely successful legal strategy since a 5-4 Supreme Court decision in 1972 against reporters ordered to testify before a grand jury.
But the fifth vote in that case, by Justice Lewis Powell, left the door open for state and lower courts to allow a reporters' privilege by considering First Amendment interests of publicizing information.
Since then, 33 states have passed shield laws and 16 others have established judicial precedents protecting reporters to some degree in state courts. Only Wyoming offers no protections for journalists.
Federal judges began offering leeway to reporters as well in civil litigation and criminal trials, so long as the information sought was not critical to the government's or plaintiff's case and was available elsewhere. At times, they protected journalists from having to disclose unpublished, nonconfidential material.
''By a stroke of genius, media attorneys were able to turn what was actually a loss for the press in 1972 into a qualified privilege for 30-plus years,'' said University of Arizona law professor RonNell Andersen Jones. ''There is now an unsettled feeling among members of the press about whether this carefully constructed house of cards is going to be blown down.''
Jones has come up with figures in a soon-to-be-released survey that indicate a rise in federal subpoenas following highly publicized media losses in recent years. Those defeats, she says, have emboldened more lawyers to subpoena journalists.
Her survey, which got responses from 761 news organizations, found 21 federal subpoenas seeking names of confidential sources in 2006 and an additional 13 seeking material other than a source's name that was received on condition of anonymity.
Those numbers are substantially higher than the 19 subpoenas since 1992 cited by the Justice Department when arguing that a federal shield bill is unnecessary. That count includes only subpoenas by department prosecutors who want reporters to disclose sources' identities to grand juries. The tally does not include civil lawsuits, cases involving special prosecutors or trial subpoenas by federal prosecutors seeking confirmation of material already published in news stories.
Some experts say the tipping point prompting some courts to rethink their prior inclinations to favor reporters was a ruling in 2003 by Richard Posner, a federal appeals court judge in Chicago. Posner said judges were wrong to give more leeway when a case did not involve grand juries and when reporters were seeking to protect nonconfidential material.
''Subpoenas should be reserved for the very rare case,'' said Patrick Fitzgerald, the special prosecutor who compelled scores of reporters to testify in the CIA leak case. ''But there is national security information going out the door on a pretty staggering basis. You can't say there's not a lot of serious information being compromised.''
Fitzgerald, a federal prosecutor who subpoenaed the telephone records of Times reporters Miller and Philip Shenon in a separate case, argues that a shield law is unneeded and potentially dangerous. He says federal prosecutors already are already bound by Justice Department guidelines to issue subpoenas only in compelling situations.
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