Fall 2001 Human Rights Magazine

By Jane E. Kirtley

The relationship between the press and the government has always been an uneasy one. The framers of the Bill of Rights recognized this tension. That's why we have a First Amendment: to guarantee the media's independence by keeping the government out of the newsroom. But what does the First Amendment really do? We know it forbids Congress to make laws "abridging" press freedom. The Supreme Court has interpreted that to mean that statutes may neither single out the news media for special punishment, nor impose unique duties on them. On the other hand, laws that apply to anyone can usually be enforced against the press with impunity, unless doing so would pose a substantial threat to the exercise of First Amendment rights.

Most journalists would say that the most significant threats to their independence occur when the government attempts to use them as its investigators, eroding a line that should be fixed and immutable. Reporters cultivate a variety of sources, many of whom are reluctant to speak directly to the authorities for any number of reasons. Government employees may wish to reveal wrongdoing, but anticipate retaliation or worse if they do so through internal channels. Individuals with information about criminal activity may harbor legitimate fears about their own safety or liberty if they "go public" with it.

Whether these concerns are real or illusory is beside the point. The press in the United States provides recourse to those who believe that the system has failed them, or is unresponsive to their concerns. It acts as a watchdog, a check on government. It informs the public, and, so informed, the public can respond appropriately.

Of course, some sources seek out journalists for the purpose of advancing an agenda, and some sources are more credible than others. Journalists have no authority to compel their news sources to testify under oath, submit to polygraph tests, or even to speak to them at all. Recognizing that almost all sources are self-selected, therefore, the wise reporter never relies on a single source for a news story, particularly one who insists on anonymity.

Given this sometimes serendipitous process for gathering news, it seems counterintuitive that the government, whose power and resources far outstrip that of news organizations-let alone individual reporters or freelance writers-would try to turn the press into its agent of discovery. But it is tempted to do just that in order to obtain raw information, as well as to uncover the identity of those who disclose government information without authorization.

There are two ways the government can do this. One is with search warrants. The other is with subpoenas, which may be served on the journalist directly, or on third parties, such as telephone or credit card companies, that may have records of transactions that might reveal how a reporter went about gathering information.

The specter of law enforcement personnel invading newsrooms and sifting through journalists' notes, tapes, and photographs is incompatible with any society that calls itself a democracy. But in 1978, in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the Supreme Court ruled that, from a constitutional perspective, the search of a newsroom raises no First Amendment concerns. In Zurcher, the police obtained a warrant to search the offices of the Stanford University student newspaper seeking photographs, negatives, and film documenting a campus incident in which several police officers were injured. The High Court majority said newsroom searches are subject only to the same Fourth Amendment protections that would apply to any other search.

Congress reacted to Zurcher with "special interest" legislation: the federal Privacy Protection Act of 1980, which prohibits, except in very limited circumstances, federal, state, and local law enforcement officials from searching for or seizing "work product" or "documentary materials" in possession of anyone reasonably believed to have the intention of disseminating information by means of public communication, such as a newspaper, book, or broadcast. The broad sweep of the language defining who would be considered to be acting as a journalist (and, therefore, subject to statutory protection) led the U.S. Court of Appeals for the Fifth Circuit to rule in 1994 in Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994), that even the operator of an Internet bulletin board system would be covered by the law.

Newsroom searches, then, are unusual. Subpoenas, on the other hand, are not. In both civil and criminal cases, litigants, prosecutors, and criminal defendants routinely seek journalists' testimony and materials. Many of those demands are thwarted by reporter's "shield laws" that provide varying degrees of protection in thirty-one states and the District of Columbia. Although few of these statutes create "absolute" bars to the forced disclosure of anonymous sources and unpublished information, the majority establish a "qualified" privilege that can be overcome only if the party seeking the journalist's compelled disclosure can demonstrate that the material sought is highly material and relevant and goes to the heart of the underlying claim, and, perhaps most significantly, is unobtainable from an alternative source. Some states also recognize a common law privilege, or one derived from state constitutional law.

How does the First Amendment play into this? Purists contend that the First Amendment is the only "shield law" they need, and, in some circuits, the federal courts have recognized a constitutionally based privilege. Whether the U.S. Supreme Court has done so, however, is a matter of debate, particularly in the criminal justice context. The High Court last considered this issue in 1972, in Branzburg v. Hayes, 408 U.S. 665 (1972).

Branzburg consisted of three consolidated cases, all involving journalists who were subpoenaed to testify before state or federal grand juries. In a narrow opinion by Justice White, joined by three other Justices, and in which Justice Powell concurred, the Supreme Court held that journalists have no constitutional privilege to refuse to appear before a grand jury and to respond to questions concerning their eyewitness observations of criminal activity. Noting that "news gathering is not without its First Amendment protections," White added that government harassment of journalists through the frivolous use of subpoenas would not be tolerated. A dissenting opinion by Justice Stewart, joined by Justices Brennan and Marshall, advocated a qualified constitutional privilege, and Justice Douglas, in a separate dissent, argued that the First Amendment mandates that journalists enjoy an absolute privilege to protect confidential sources. Both the news media and their lawyers were dismayed by the ruling in Branzburg. They argued that turning reporters into "state's evidence" would hopelessly undermine their ability to do their jobs. Although some scoffed at that argument as self-serving, several states were persuaded to pass remedial shield laws to provide some measure of statutory protection. But despite multiple attempts to pass a federal shield law, none succeeded, in large part because the media were themselves divided on the wisdom of a legislative solution.

Most of the post-Branzburg jurisprudence required courts to divine the scope of a constitutionally-based privilege in contexts other than grand jury subpoenas. From that has emerged a crazy-quilt of fact-specific opinions, providing limited guidance to trial judges, and even less reassurance to reporters and their sources that information received in confidence can be kept that way. Nevertheless, relatively few journalists have been held in contempt for defying subpoenas, and even fewer have been sent to prison for doing so.

As Branzburg was working its way to the Supreme Court, an even more insidious threat to the First Amendment was brewing in the Nixon Justice Department. In 1971, the FBI obtained, directly from the telephone company, records reflecting toll calls made by reporter Richard Dudman and Knight Newspapers shortly after the publication of the Pentagon Papers. Several other reporters' and columnists' phone records were retrieved in the same way over the next few years. AT & T adopted a policy in 1974 that it would cooperate with valid subpoenas for toll records, without prior notice to the subscriber, which meant that the journalist would have no opportunity to contest the subpoena before information that might compromise source confidentiality was revealed.

Shortly thereafter, The Reporters Committee for Freedom of the Press (The Reporters Committee), a nonprofit advocacy group, together with Dow Jones, Knight Newspapers, and a dozen individual reporters, sued in federal district court in Washington, D.C., seeking a declaratory judgment that the First and Fourth Amendments required prior notice be given to journalists before their toll records were surrendered to the government. But in 1978, in a 2-1 decision issued shortly after Zurcher, the D.C. Circuit ruled that phone records belong to the telephone company, not the journalist, and that, therefore, any privilege that might exist for journalists' own records would not apply to them. The Supreme Court let the decision stand.

In the wake of media protests, Attorney General John Mitchell issued the initial version of guidelines on subpoenaing the press (28 C.F.R. 50.10). Revised several times by subsequent administrations, but never rescinded, the guidelines as currently drafted regulate subpoenas served by the Justice Department on individual journalists and news organizations, as well as those seeking their telephone toll records. Mindful of the importance of balancing the rights of reporters to investigate and report the news against the administration of justice, the guidelines require that, before considering a media subpoena, all reasonable attempts be made to obtain information from alternative sources; negotiations with the media precede any subpoena, including one for telephone records in most cases; that the material sought should be essential to the investigation and limited in scope, ideally for the verification of published information; and that express authorization from the attorney general be obtained in advance. Failure to obtain that approval can result in disciplinary action, although the guidelines' own terms state explicitly that no legally-enforceable rights (i.e., the guidelines do not permit a person to sue the government for the latter's failure to abide by said guidelines) are created.

The attorney general's guidelines have stood the test of time, and have had the desired salutary effect. Statistics compiled by The Reporters Committee demonstrate that far fewer subpoenas issue from federal prosecutors than their state counterparts. And telephone records subpoenas are comparatively rare. The Justice Department reported that it served sixty subpoenas on journalists between 1991 and 2001, and obtained reporters' phone records thirteen times during the same period.

But in the late summer of 2001, it appeared that this period of restraint and balance might be coming to an end. Two unrelated incidents suggested that Attorney General John Ashcroft might be poised to alter long-standing Justice Department policy.

The first case involved Vanessa Leggett, an aspiring Houston author whose background includes stints as a college lecturer in technical writing and as a private investigator. Leggett claimed that she had spent much of the preceding four years gathering material on an unsolved 1997 murder with an eye to writing a book about it. Although she reportedly provided state prosecutors with some material, Leggett balked when served with a grand jury subpoena prompted by a new federal investigation into the murder that sought everything she had accumulated in her research. She would not, she declared, compromise her confidential sources.

A federal district judge held Leggett in contempt when she refused to comply with the subpoena. She was ordered to jail. Leggett appealed to the Fifth Circuit, arguing that the Justice Department had failed to follow the attorney general's guidelines in subpoenaing her.

The federal government replied that Leggett was not a "member of the news media" as contemplated by the guidelines, citing her scanty record as a published author and her lack of affiliation with any news organization. Many commentators were outraged that the government would attempt to define who is or isn't a journalist.

But this wasn't the first time the Justice Department took such a position. In 1997, assistant U.S. attorneys for the Eastern District of New York argued that James Sanders, a retired police investigator and book author, was not a "bona fide journalist" and could be subpoenaed as part of an investigation in which he was implicated. After reviewing Sanders's record as the author or coauthor of three published books, the Justice Department eventually acknowledged that it had violated the guidelines in its initial subpoenas of him. (Sanders was subsequently convicted of conspiring to steal seat fabric from the wreckage of TWA Flight 800.)

In Leggett's case, however, the Justice Department refused to budge, insisting that she was not entitled to claim any journalist's privilege. That position is shaky; some federal circuits, among them the Second Circuit, have held that even a person who is not a "traditional" journalist may invoke a reporter's privilege so long as, from the time she begins gathering information, she intends to disseminate it to the public. Leggett would seem to pass the test given that she was gathering information for a book that she was planning to have published. But with the growth of Internet publishing by unconventional "content providers," unless Congress or the courts are prepared to create a wholesale exemption from grand jury subpoenas for anyone who claims that he or she intends to "publish" information, the underlying question of who is entitled to assert a journalist's privilege is not going to go away.

As it turned out, Leggett's status was treated as irrelevant by the Fifth Circuit, which ruled in an unpublished opinion issued in mid-August 2001, that journalists enjoy no privilege to resist grand jury subpoenas. The panel opinion appeared to be even more dismissive of First Amendment concerns than Branzburg, and conflicts with post-Branzburg decisions from several other circuits. Leggett's lawyer announced plans to appeal. (See article on p. 11 of this issue for additional discussion of Zurcher, Branzburg, and Leggett.)

Just days after the Fifth Circuit's ruling came a new revelation: the U.S. Attorney's office in the Southern District of New York had subpoenaed the home telephone records of Associated Press (AP) reporter John Solomon in May 2001, ten days after his story appeared about a federal wiretap on a pizza parlor telephone that recorded a conversation with Senator Robert Torricelli. The contents of wiretaps are secret by law. Solomon's story cited unnamed "law enforcement officials" as his source. It had all the earmarks of a classic leak, and prompted a Justice Department investigation to try to uncover the source's identity. But rather than subpoena Solomon directly, the Acting Deputy Attorney General Robert S. Mueller III (now the director of the FBI) approved a subpoena for his phone records.

The AP asked Attorney General Ashcroft to explain why investigators failed to notify the news organization in advance and took more than ninety days to inform Solomon after the subpoena issued, and also to describe what alternative steps were taken to obtain the information elsewhere. In a letter to Ashcroft, Senator Charles Grassley (R-Iowa) asked the attorney general to turn over documents related to the subpoena. According to news reports, Grassley's letter stated that such subpoenas should never issue "until every other avenue is exhausted." He also told the attorney general ". . . it is important that you give clear voice on the importance of protecting the Fourth Estate." Many voices in the news media ominously predicted that the Leggett and Solomon cases indicate a shift in Justice Department policy. If true, more litigation seems likely.

These incidents raise questions that most media lawyers had hoped to avoid posing to the Supreme Court. What is the scope of constitutional protection for journalists who are called before a grand jury? May the government subpoena journalists as part of its investigation to uncover a leak? The answer to both turns on a fundamental issue: in a free society, whose responsibility is it to conduct government investigations, including leak investigations?

The responsibility to build a case rests with the government, not the press. The perennial argument that journalists have a duty to provide evidence, just as any other citizen, rings hollow in this situation. True, it would be more expedient to compel journalists to comply with subpoenas. But the cost to freedom of the press and to the public's right to know would be profound.

Journalists play a special role in our society. "Good citizenship" for them requires that they remain independent of the government, for the sake of democracy. There can be no more compelling interest than that.

Jane E. Kirtley is the Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota. She is also a member of the affiliated faculty of the University of Minnesota Law School. From 1985-1999, she was executive director of The Reporters Committee for Freedom of the Press.

As published in Human Rights, Fall 2001, Vol. 28, No. 4, p.7-10.