Free the Speech

Democracy Demands a Journalist-Source Shield Law

The press isn’t free if it has fear of prosecution for leaks. It’s time to give reporters the same type of privilege attorneys and doctors have.

The Guardian and The Washington Post were each awarded the Pulitzer Prize for public service Monday for their reporting based on classified documents leaked by former National Security Agency contractor Edward Snowden. This will no doubt annoy many in the intelligence community who believe that Snowden, The Guardian, and the Post have done serious damage to the national security of the United States.

Unlike most disclosures of classified information, this reporting has not raised any central issues about the legitimacy or value of a journalist-source privilege, because Snowden chose to make no secret of his identity. Nonetheless, the bestowal of the Pulitzer Prize presents a good moment to reflect on the appropriate relationship between the government, the press, and source.

The issue is particularly timely at the moment because Gabriel Schoenfeld, a senior fellow at the Hudson Institute and a former adviser to presidential candidate Mitt Romney, recently published an article in the journal National Affairs in which he concludes that for Congress to enact a federal journalist-source privilege would be “a bad idea.” Although I admire and respect Schoenfeld, in this, he is wrong.

At the outset, let me explain what the journalist-source privilege is. Like the attorney-client or doctor-patient privilege, the journalist-source privilege guarantees the confidentiality of certain communications. Thus, what a client tells his lawyer in the course of getting legal advice is privileged, in the sense that a court cannot, except in extraordinary circumstances, compel the lawyer to disclose what her client told her.

Suppose, for example, the client is charged with murder. He claims that he is innocent. His lawyer wants to know whether the client knew the victim. The client is afraid to admit this to the lawyer, however, for fear that his lawyer might be compelled to disclose this fact to the prosecution. But it is important for the lawyer to know this information, so she can properly and fully defend her client. The privilege is designed to enable the client to reveal this information to his lawyer without fear that the information might later be used against him. If the client would not have disclosed this fact to his lawyer without the assurance of the privilege, then the prosecution loses nothing by not being able to learn the information from the lawyer, because without the privilege the lawyer wouldn’t have known the information in the first place.

The journalist-source privilege works the same way. Suppose a congressional aide overhears a phone call in which a senator takes a bribe. The staff member is appalled and wants to reveal the senator’s misconduct. But she does not want to be known as a “rat” or to be criticized or even fired for disclosing the information, so she is reluctant to report the incident. She contacts a reporter and asks whether she can tell him something in confidence. To her great relief, he assures her that, because of the journalist-source privilege, he can report the incident, which will enable both the public and the authorities to pursue the matter further, without revealing her name, even if a prosecutor or a grand jury wants him to do so. Without the privilege, the story would never have seen the light of day, but with the privilege the story gets out and the source remains anonymous.

Although the journalist-source privilege has been recognized in 49 states, Congress, paralyzed as usual by divisiveness and infighting, has thus far refused to do so. As a consequence, if my hypothetical senator is prosecuted in federal court for taking a bribe, the reporter can be compelled to reveal his source and the source can be compelled to testify. Knowing this, the source in many instances will tell no one about what she overheard, and there will therefore be no investigation or prosecution for the bribe.

Given the rather sensible reason for recognizing a journalist-source privilege, why does Gabriel Schoenfeld resist? He offers several reasons, none of which is persuasive.

First, he maintains that enactment of such a law “would overrule a historic Supreme Court decision.” This is simply wrong. In 1972, the Supreme Court, in the case of Branzburg v. Hayes, held in a five-to-four decision that the First Amendment’s guarantee of “freedom of the press” did not, of its own force, require the recognition of such a privilege. Whatever one thinks of that decision, it says nothing at all about the wisdom of the privilege as a matter of sound public policy. It is for that reason that 49 states have recognized the privilege. In no way would Congress’s adoption of legislation recognizing a federal journalist-source privilege “overrule a historic Supreme Court decision.”

Second, Schoenfeld maintains that recognizing such a privilege would require “the classification of ‘journalists’” in a way that would authorize some “journalists” to invoke the privilege and not others. This is true. Given the nature of modern media, a serious question arises over who qualifies as a “journalist” for purposes of the privilege. Do I, a law professor, get to invoke the privilege when I write a piece for The Daily Beast? Does a personal blogger writing on Facebook get to invoke the privilege? What about a student writing for a high school newspaper? These are, indeed, tricky issues that quite predictably divide “journalists” themselves. No one who thinks of himself as a “journalist” wants to be left out.

But the law is full of hard choices, and what matters here is not that every tomdickandharry self-professed “journalist” gets to assert the privilege, but that sources can reasonably find journalists who can invoke the privilege when they want anonymity. It is no doubt true that, no matter how one draws the line, some folks will be unhappy. But as long as the statutory definition of “journalist” is reasonable, and is not couched in such a way to exclude journalists because of their particular ideological slant, this is not a serious obstacle. Indeed, if 49 states have managed to make this work, so can the federal government.

Third, Schoenfeld argues that a “fundamental problem” with a reporter’s privilege is “that it places the professional needs of reporters above the need of the community to stop crime.” This misses the whole point of the privilege. The privilege is not about “the professional needs of reporters,” it is designed to further the legitimate needs of the American people—and of law enforcement—to gain access to information that otherwise might never see the light of day.

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Fourth, Schoenfeld argues that we don’t need the journalist-source privilege because people are willing to reveal information to reporters even without it. But this is an unsupportable assertion. Of course people who aren’t worried about being exposed disclose information to reporters without the benefit of the privilege. But the relevant people are those who do not reveal information to reporters because they do not want to be exposed. The absence of the privilege deprives the American people—and law enforcement—of that additional information, information that now never makes it into the public eye.

Frankly, the fact that 49 states recognize the journalist-source privilege and don’t seem in any rush to abandon it is pretty good evidence that the federal government should recognize the privilege as well. This does not mean that there won’t be hard cases. In my view, the hardest case is when the source is violating the law when he reveals the information to a reporter.

Suppose, for example, that a government employee or contractor with a top secret clearance wants to reveal classified information to a journalist. In this situation, the journalist has a First Amendment right to publish the information unless its disclosure would create a clear and present danger of grave harm to the nation, but the government employee, who has made a contract with the government, can be criminally punished for disclosing the classified information, except in extraordinary circumstances.

In such circumstances, should the journalist be able to assert the privilege in order to protect the identity of the “leaker” who, let us assume, can be criminally punished for disclosing the classified information? On the one hand, one might say that because the leak was unlawful the leaker should not be protected. On the other hand, one might say that because the reporter has a right to publish the information he should be able to protect the identity of his source.

It is the perplexity of this situation that has caused most of the paralysis in Congress. Should the privilege apply, or not? In my view, the best solution to this conundrum is to allow the reporter to invoke the privilege if the unlawful leak discloses information of significant public value. Of course, this raises the question of what one means by “significant public value.”

To give two examples, I would say that Snowden’s revelation of the existence of the NSA’s telephone metadata program had “significant public value,” because it has generated serious public discussion about the legitimacy of the program. Therefore, if he had maintained his anonymity (which he did not), the reporter to whom he disclosed this information could not be compelled to reveal his identity. On the other hand, if a government employee leaks classified information about, say, the identities of secret American agents in Iran, I would conclude that that publication of the names of the secret agents does not have “significant public value” and that the reporter to whom the leaker disclosed the information could therefore be required to reveal the source’s identity.

Needless to say, these are tricky questions. But however we resolve this specific dilemma, the journalist-source privilege is important to the functioning of our democracy and it is time for Congress to get its act together and to enact this privilege into law now.