The Wake

“Reporters should not be an arm of the law; if government employees illegally leak information, it is up to the government, with all of its coercive power, to discover the culprit, not a reporter whose primary duty is to inform the public.”

-Judith Miller, of the New York Times, testifying before the Senate Judiciary Committee on October 19, 2005

For nearly 200 years the press has been referred to as “the fourth estate,” an independent entity dedicated to acting as a watchdog over the three branches of government and informing the voting public. The need for a free and independent press was recognized explicitly by the framers of the Constitution when in the First Amendment they granted that, “Congress shall make no law…abridging the freedom of the press.”

In 1972, the Supreme Court ruled in Branzburg v. Hayes that the First Amendment does not grant journalists an absolute privilege to protect their confidential sources’ identities.

The plaintiff, Paul Branzburg, a young journalist from Louisville, Kentucky had written two separate stories about drug use in the Louisville area. While reporting on these stories he had observed illegal activities taking place – drug use, and the synthesizing of marijuana into hashish. Not long after the stories were published, a grand jury subpoenaed Branzburg, demanding that he reveal the identities of his sources for the stories. He refused. Branzburg claimed he had a First Amendment right not to reveal the identities of his sources, but the Supreme Court disagreed.

After the court released the Branzburg decision, there was a push to create a federal shield law – a law that would allow journalists to protect the identities of their confidential sources - but one was never passed. Now, 33 years later, journalists are again fighting for their right to keep their confidential sources confidential.

An increasing number of federal courts are forcing journalists to divulge the identity of their confidential sources. In these situations journalists who refuse to give up their sources are held in contempt of court and become subject to heavy fines and jail time

Recently Judith Miller of the New York Times, spent 85 days in jail this summer for refusing to testify before a grand jury investigating the leak of CIA agent Valerie Plame’s name to the media. In 2004 Jim Taricani, a broadcast journalist in Rhode Island was sentenced to six months of home confinement for refusing to reveal the source of an FBI videotape that showed a politician taking a $1,000 bribe. Vanessa Leggett, a freelance writer, was jailed for 168 days in 2001 for refusing to turn over all of her notes on a book she was writing about the murder of a Houston socialite.

These cases represent a breakdown in journalists’ ability to remain an independent entity. The federal government is coercing journalists to do their investigative work instead of doing it themselves.

Although journalists are currently protected by state-legislated shield laws in 31 states, and enjoy some sort of common law protection in 49 states (all but Wyoming), they are not currently protected by federal law. A growing number of federal courts, most notably the fifth, seventh and District of Columbia circuit courts have ruled that journalists do not have a qualified privilege to protect their confidential sources’ identities.

Journalists need a federal shield law to protect their relationships with confidential sources, in order to protect the fourth estate.

Without such protection, important sources will no longer be willing to step forward and provide journalists with information for fear that their identities will be revealed. Much of the sensitive information that journalists receive from Capitol Hill comes from these confidential sources. Soon whistle-blowers from both the public and private sectors will be fearful to come forward with allegations of misconduct if they know journalists will be subpoenaed to name their informants as soon as their stories are published.

The need for confidentiality in journalism is especially significant in the wake of 9/11, a time during which, according to the Reporters Committee for Freedom of the Press, more government documents are being classified than ever before. Fifteen million documents were classified last year – over 180,000 in Homeland Security alone. When these documents are classified, they are only available to people——mainly government employees–who are authorized to see them. The only way the public can get a hold of this critical information is if people with the authorization illegally leak it

Journalists are forced to turn to government sources, most of whom require anonymity, to gain access to critical information about the government in order to fulfill their watchdog roll.

If the press is to truly remain an independent watchdog over the government (and big business, the non-profit sector, etc.), it cannot become the federal government’s investigative arm. The press must be given the protection it needs to continue to honor the contracts it creates with sources by granting them anonymity. The future of the press and potentially our democracy is at stake.