The Wake

Over 250 people filled the Cowles Auditorium in the Hubert H. Humphrey Center. A buzz generated by students, journalists, academics, and lawyers filled the room. They all anticipated Floyd Abrams, the legal representation for New York Times reporter Judith Miller, who was held in contempt of court and sent to jail for refusing to reveal her sources in the Valerie Plame investigation. Since the lecture, the Plame investigation has resulted in the resignation of I. Scooter Libby, special aide to Vice President Chaney. Abrams had come to the University for the 20th annual Silha Center Lecture, which is devoted to the study of media law and ethics. He spoke of the history behind the protection of the press, and specifically of his experience defending journalists who were called to testify before the courts.

The fact that the auditorium was packed indicated people’s interest in the Miller case. As Abrams pointed out, the case brings both journalistic ethics and the law into question. Should there be a federal shield law protecting journalists from Miller’s fate? Would that law be absolute or qualitative? What are the implications of having or not having a shield law? Abrams offered his opinion on these matters, while providing hope for those who advocate for a shield law. Abrams held that even though Miller was sent to jail and they legally suffered a loss, the case may push legislation in Congress and that the public is more inclined to trust journalists because they saw Miller fight to protect her promise to her source, Lewis Libby, Vice President Cheney’s Chief of Staff.

I truly wanted to believe Abrams’s optimistic claims about the possibility of a federal shield law, as I believe one is necessary for the media to do its job, but with federal courts so at odds with one another the uncertainty is overwhelming. Since the controversial Supreme Court case Branzburg v Hayes, which established no constitutional shield law for the press, both state and federal courts have approached journalistic privilege differently. Thirty-one states developed their own shield laws, while some federal courts made decisions about shield laws, both for and against. With this kind of uncertainty federal legislations is desperately needed, not only to clearly assert what privileges the media have, but to insure the media’s informative role.

Abrams touched on this uncertainly and alluded to the ramifications of not protecting the press. If the law does not protect the press, information will stagnate. Sources will be unwilling to talk to the press unless they are giving a confidentiality agreement and if the journalist can’t keep that agreement the sources will dry up. Additionally, without a shield law it is possible for journalists to become extensions of government and serve as spies. Sources would then be unwilling to talk with the press, knowing what they divulged could be used against them. Abrams, like the dissenting members of the Supreme Court in the Branzburg case, held that these consequences are real and I would have to agree. When balancing the public’s need to know and the public’s need to have criminal investigations and prosecution, I have to side with their need to know. Only after the public is aware of societal ills can they be remedied, for it is the public’s pressure that makes a difference in the first place.

In terms of developing a federal shield law, certain situations and circumstances make its development difficult. Regarding cases where national security is on the line, or someone’s life is at steak, a qualified protection should be used. The Supreme Court outlined such a qualified protection in the Branzburg case, where the government must prove the information the journalist has is both relevant and crucial to the case, and they can’t get the information anywhere else. That kind of test takes into account journalistic interests, as well as governmental interests to protect is citizenry.

If anything can be learned form Miller’s case and Abrams’s lecture it is this: a federal shield law is necessary and serves the public’s best interest. As idealistic as it sounds a free press means a free society where information is readily available. In today’s world it is sometimes hard to place such faith in the media. Concerning Miller, the New York Times printed an apology for the reports she and other journalists made about weapons of mass destruction in Iraq. Instances like these make the public wary of the media, but even so, journalists play an essential role in educating the public. Why not assist that role and make it stronger? A shield law is certainly meant to protect the press, but it also protects knowledge the public desperately needs to know. Abrams lecture reaffirmed many of these ideas, while illuminating the historical nature of this battle.