Cosponsorship of the ABA Section of Litigation’s
Recommendations and Report to the ABA House of Delegates about a Federal
"Shield Law" for Journalists
Note: The views expressed herein represent only
those of the Arts, Entertainment, Media and Sports Law Section of the
District of Columbia Bar and not those of the D.C. Bar or of its Board
The Steering Committee of the
Arts, Entertainment, Media and Sports Law Section of the District of
Columbia Bar on behalf of the Section, has voted to co-sponsor the
American Bar Association (ABA) Section of Litigation’s Report
and Recommendation that the ABA House of Delegates support the principles
inherent in the current legislative initiative for a federal shield
law for journalists.
The proposed legislation would protect both the public’s right
to know and the fair administration of justice. Accordingly, the Arts,
Entertainment, Media and Sports Law Section of the District of Columbia
Bar joins the ABA Section of Litigation as a co-sponsor of its Recommendation
to the ABA House of Delegates and further affirms its support of the
principles underlying the federal shield law legislation.
The text of the Report and Recommendation follow:
American Bar Association
Section of Litigation
Report to the House of Delegates
RESOLVED, in order to protect the public’s need for information
and to promote the fair administration of justice, the American Bar
Association supports the principles inherent in the current legislative
initiative for a Federal Shield Law for journalists, entitled the “Free
Flow of Information Act.”
FURTHER RESOLVED, That the American Bar Association supports protecting
the public’s right to know by establishing reasonable standards
and balances for both compelling and shielding journalists with respect
to requests or subpoenas requiring them to disclose the names of sources
and the information that they obtain in the course of their work, much
as is set forth in Department of Justice guidelines that have been in
place for 30 years.
FURTHER RESOLVED, That the American Bar Association supports the following
principles inherent in the proposed Congressional legislation:
journalists play an important role in providing information of significance
to the public that aids in ensuring an informed democracy;
prior to requiring information from journalists, a party should demonstrate
that the information sought is essential to a critical issue in the
matter, that all reasonable alternative sources for the information
have been exhausted, and that the need for the information clearly
outweighs the public interest in protecting the free flow of information;
- That a Federal Shield Law should apply to journalists who disseminate
information by print, photographic, broadcast, cable, satellite, electronic,
mechanical, or any other media, through a newspaper, book, magazine,
periodical, radio or television station, programming service, channel,
network, news agency or wire service, or similar services.
This report is submitted in furtherance of the Recommendation that the
House of Delegates of the ABA support the principles inherent in the
current legislative initiative for a Federal Shield Law for journalists,
authors, publishers and the like (“journalists”). More specifically,
it is urged that the ABA support the principles behind H.R. 581, the
Free Flow of Information Act, introduced by Rep. Mike Pence (R-IN) and
Rick Boucher (D-VA) in the House of Representatives. An identical bill,
S-340, was introduced, also in February, by Sen. Richard Lugar (R-IN)
and has been co-sponsored by Sen. Lindsey Graham (R-SC) and Sen. Christopher
The principles behind the proposed Federal Shield Law will work to protect
the public’s right to know by establishing reasonable standards
for both compelling and shielding journalists with respect to requests
or subpoenas that they disclose the names of sources and the information
that they obtain though newsgathering. The bills introduced into Congress
are largely based on Department of Justice guidelines that have been
in place for some thirty years. See Policy With Regard to the Issuance
of Subpoenas to the News Media, 28 C.F.R. § 50.10 (2005).
The Principal Policy Reasons for Support
This initiative should be supported by the ABA for two principal reasons.
First, as a purely legal/logical matter, 31 states and the District
of Columbia have a Reporter’s Shield Law which protects journalists,
on either an absolute or qualified basis, from having to reveal sources
[Footnote 1]. In an additional 18 states, i.e., 49
in all, this protection derives from judicial decisions [Footnote
2]. However, when a reporter relies upon state
law, and makes an agreement of confidentiality with a source, the reporter
may not be protected if many years later, the matter becomes relevant
to a federal lawsuit or investigation. This is because the federal courts
do not give any weight to state law in non-diversity matters and may
offer no protection to the reporter. Given the importance of uniformity
in our laws, and the goal of the judicial system to encourage citizens
to rely on clearly stated law, it is essential to recognize a federal
reporter’s privilege in order to correct the anomaly and unfairness
of having two inconsistent sets of law apply to the same conduct. In
other words, a reporter who needs to give a promise of confidentiality
to a source in order to acquire information that would otherwise be
unavailable, and who relies on state law to make such an agreement,
should not be put at professional or personal peril if the reporter
later is subpoenaed in a federal case where no similar protections are
Second, and more important, if the federal courts do not afford such
protection, the result ultimately will be the limiting of information
to the pubic. Either if journalists are not in a position to grant confidentiality
to sources who legitimately need anonymity to survive or if sources
do not believe that journalists will indeed keep to their promise of
anonymity, information ultimately going to the public will be chilled.
More critical, the information which will be lost is most often information
from the whistleblower or the critic of government or management who
needs anonymity to keep his job or to keep from personal jeopardy. Hence,
it will be the news particularly important to the public, critical of
government and big corporations, which will be lost. Such restriction
on information to the public is not good either for our legal system
or for our informed democracy. Thus, it should be emphasized that this
initiative’s main goal is not merely the protection of journalists;
it is the protection of the free flow of information to the public.
Thus the ABA should support a Federal Shield Law that balances the public’s
need for information and the fair administration of justice. As well,
it should be underscored that even in states where absolute privileges
have existed, the ability of prosecutors to successfully prosecute crimes
has not been thwarted by the application of the reporter’s privilege.
The need for the ABA’s support for the principles inherent in
the proposed federal legislation is immediate. The proposed bills await
action this legislative session. Within the last several months, a slew
of reporters nationwide have been subpoenaed in the federal courts and
questioned about their confidential sources. One (a television reporter
in Rhode Island) has already been convicted of contempt and sentenced;
at least seven others, all reporters of well-respected media entities,
have been found in contempt in two different cases in federal district
court in Washington, DC; their cases are all currently on appeal, although
in one case a contempt finding has been affirmed by the U.S. Court of
Appeals for the District of Columbia in a decision containing four separate
opinions by the three judge panel. In re Special Counsel Investigation,
Judith Miller, 397 F.3d 964 (D.C. Cir. 2005) (“In re Judith Miller”),
petn. for reh’g and reh’g en banc denied, Apr. 19, 2005
The Proposed Legislation
Due to the organic nature of the legislative process, the Recommendation
is not tied to support of specific legislation. Instead, the Recommendation
is stated in terms of principles inherent in the legislative initiatives
for a Federal Shield Law. We thus set forth: (i) a Summary of the Pence/Boucher/Lugar
legislation as of May 9, 2005; (ii) the status of such legislation as
of May 9, 2005; and (iii) a Summary of the principles inherent in the
legislation that we believe the ABA should support, regardless of whatever
form the legislation may ultimately take.
(i) Summary of the Legislation: Like many state shield
laws, the Pence/Boucher/Lugar legislation initially proposed in both
the House and the Senate would provide complete protection for a reporter’s
confidential sources and information. It would also provide a qualified
privilege for other information that a reporter learns but does not
publish. This would include a reporter’s resource materials, such
as his notes. In such cases, reporters would only be required to provide
information if the information sought is unavailable from alternative
sources, (i.e. exhaustion of alternative means to get the information)
and is essential to a significant legal issue in the case. Most state
laws, as well as the Department of Justice’s own guidelines, provide
similar protection. The proposed legislation would protect a reporter’s
personal information held by others, such as telephone, credit card
and hotel records. (It has become more common for prosecutors to try
to get around shield laws by subpoenaing third parties to obtain a reporter’s
telephone and travel history in an attempt to determine the identity
of sources.) The proposed legislation is structured to apply to “covered
persons,” which is defined as an “entity that disseminates
information by print, broadcast, cable, satellite, mechanical, photographic,
electronic or other means” and that (a) publishes a newspaper,
book, magazine, or other periodical; (b) operates a radio or television
broadcast station, cable system, etc; or (c) operates a news agency
or wire service. The proposed legislation also covers a parent, subsidiary
or affiliate of such an entity, as well as an employee, contractor,
or other person who gathers, edits, photographs, etc., news or information
for such an entity. The import of this section is that the shield law
protections are meant to apply to the media entities (and their employees
and contractors) that are most directly responsible for ensuring the
free flow of information to the American public, regardless of the medium
of the information.
(ii) Summary of Bill Status (as of May 9, 2005):
The Pence/Boucher legislation, entitled the “Free Flow of Information
Act of 2005” (H.R. 581), was introduced in the House of Representatives
on February 2, 2005. It has 23 co-sponsors. It has been referred to
the House Committee on the Judiciary.
The Luger legislation, S-340, is identical to H.R. 581 and was introduced
to the Senate by Sen. Richard Luger on February 9, 2005. It has 4 co-sponsor.
It has been read twice and is currently referred to the Committee on
(iii) Principles Inherent in the Legislation: The Pence/Boucher/Lugar
legislation may change between the date of this Report and time for
vote. For example, there is debate as to whether an absolute privilege
for confidentiality of sources is justified, as opposed to a qualified
privilege in such circumstances. At a minimum, we believe that a qualified
privilege must exist for a reporter’s confidential sources and
Inherent in the pending legislation, then, are the following principles
that we think important to any Federal Shield Law:
(i) That a Federal Shield Law promote both the public’s need for
information and the fair administration of justice.
(ii) That a Federal Shield Law set forth reasonable standards and balances
for both compelling and shielding journalists with respect to subpoenas
requiring them to disclose the names of sources and the information
they collect in the course of their work, much as is set forth in the
Department of Justice Guidelines.
(iii) That journalists play in important role in providing information
of significance to the public that aids in ensuring an informed democracy.
(iv) That prior to requiring information from journalists, a party should
demonstrate that the information sought is essential to a critical issue
in the matter, that all reasonable alternative sources have been exhausted,
and that the need for the information clearly outweighs the public interest
in protecting the free flow of information.
(v) That a federal shield law should apply to those entities and their
reporters who primarily provide the American people with their information
on matters of public importance, such as newspapers, magazines, periodicals,
television and radio broadcasts and cablecasts, irrespective of the
medium in which such entities provide such information.
Historical Background and Context
From a historical and legal perspective, the principles and purposes
behind this legislation are not new. In 1857, The New York Times published
an editorial criticizing lobbying activity involving congressmen who
were paid to support certain legislation. A congressional committee
was established to probe the charges. However, instead, it sought out
The Times reporter and asked him to reveal his sources. He refused,
and was held in contempt by the House of Representatives, serving 19
days in jail. After he was released, the House members in question resigned
when the full story became public.
In 1972, after many states and some circuits already recognized some
form of reporter’s privilege, the U.S. Supreme Court in Branzburg
v. Hayes, 408 U.S. 665 (1972), dealt with this question for the first
and only time. Its five justice majority opinion rejected a reporter’s
privilege in the grand jury context. But interpretations of the meaning
of Branzburg’s 4-1-4 decision still vary, since Justice Powell,
the necessary fifth vote for the majority, wrote in a concurring opinion
that First Amendment values were implicated and that a case-by-case
balancing test ought to be applied even where reporters are asked to
surrender confidential information to a criminal grand jury. Whatever
the meaning of Branzburg, in the years following that decision, more
states passed shield laws and almost all the state courts and some federal
circuit courts recognized the reporter’s privilege, generally
applying a so-called three-part balancing test requiring relevance,
essentiality (does the information sought go to “the heart of
the matter”) and the exhaustion of alternative sources. See, e.g.,
Bruno Stillman, Inc. v. Globe Newspaper Corp., 633 F.2d 583 (1st Cir.
1980); United States v. Burke, 700 F.2d 70 (2d Cir. 1983); LaRouche
v. NBC, 780 F.2d 1134 (4th Cir. 1986). Indeed, for decades, federal
prosecutors and courts have rarely tried to punish reporters for protecting
confidential sources. However, recent actions by the courts and prosecutors,
including special prosecutors, have threatened that protection and undercut
the laws passed by 31 states and recognized judicially by 49. Compare
In re Judith Miller, 397 F.3d 964 (D.C. Cir. 2005).
Additional Reasons to Support the Principles Inherent in the
Americans generally understand the reliance on confidential sources
as an integral part of our system of balanced government. In a recent
national survey, 72% agreed with the statement, “Journalists should
be allowed to keep a news source confidential.” Interestingly,
our federal system has less protection in this area not only than all
of the states except Wyoming (which has never ruled on the question)
but than many countries around the world. Bill Safire recently wrote
“the sudden wave of judicial repression, unless checked quickly
by higher courts or by congressional action, will make it much easier
for the government to deny a citizen’s right to know about every
miscreant, from corrupt officials to sports heroes” (a reference
to the BALCO steroid scandal).
As stated above, the public interest is served when whistleblowers can
reveal official abuses of power or corporate mismanagement without fear
of reprisal. Moreover, the federal government itself uses confidential
sources as a communication tool. It is the unofficial method of providing
the public with information on important public policy matters. In other
areas, planned leaks are often used to float proposals and gauge public
response. However, if courts force reporters to disclose sources and
other information obtained in confidence, it will create the appearance
that journalists are — or can be — an investigative arm
of the government.
The attorney-client relationship as well as those between physician
and patient, priest and penitent, and spouse and spouse, are all protected
by our legal system. They allow the speaker in those cases to speak
openly to his counselor or adviser. The reporter-source relationship,
the result of which inures to the benefit not only to either party,
but more important, to the public at large, should be no less protected.
Democracies such as Australia, Japan, Mexico, German, Italy, Norway
and others have stronger legal protection of sources than does our federal
system. In Sweden, a journalist violates the law in revealing a source.
British courts have called confidentiality of sources “one of
the basic conditions of press freedom.”
In sum, the public expects the media to provide them with important
news and information on matters of public concern, including matters
related to the justice system and government. If journalists are prevented
from getting all aspects of a story because their access to confidential
sources is not secure, citizens will not receive the information to
which they are entitled, and the public interest will not be served.
The public’s ability to stay informed and hold its government
accountable, both, in the end, will be diminished.
For all of the above reasons, it is submitted that the ABA support the
principles inherent in the congressional initiative to enact a Federal
Shield Law for journalists, entitled the “Free Flow of Information
The Arts, Entertainment, Media and Sports Law ("AEMS") Section
of the D.C. Bar represents 598 D.C. Bar members with an interest in
arts, entertainment, media and sports law. The Steering Committee of
the AEMS Section voted to adopt this Public Statement without opposition.
The principal drafter of this Public Statement was Section Media Law
Committee Chair Charles Tobin.
Ala. Code § 12-21-142;
Alaska Stat. §§ 09.25.300 et seq.; Ariz. Rev. Stat. Ann. §
12-2237; Ark. Code Ann. § 16-85-510; Cal. Const. Art. I., §
2(b); Cal. Evid. Code § 1070; Colo. Rev. Stat. §§ 13-90-119,
24-72.5-101 et seq.; Del. Code Ann. Tit. 10, §§ 4320 et seq.;
D.C. Code §§ 16-4701 et seq.; Fla. Stat. § 90.5015; Ga.
Code Ann. § 24-9-30; 735 Ill. Comp. Stat. §§ 5/8-901
et seq.; Ind. Code Ann. § 34-46-4-2; Ky. Rev. Stat. Ann §
421.100; La. Rev. Stat. Ann. §§ 45:1451 et seq; Md. Code Ann.
Cts. & Jud. Proc. § 9-112, Mich. Comp. Laws § 767.5a;
Minn. Stat. §§ 595.021 et seq.; Mont. Code Ann. §§
26-1-901 et seq.; Neb. Rev. Stat. §§ 20-144 et seq.; Nev.
Rev. Stat. Ann. § 49.275; N.J. Stat. Ann. § 2A:84A-21 et seq.;
N.M. Stat. Ann § 38-6-7; N.Y. Civ. Rights Law § 79-h; N.C.
Gen. Stat § 8-53.11; N.D. Cent. Code § 31-01-06.2; Ohio Rev.
Code Ann. § 2739.12; Okla. Stat. Ann. Tit. 12, § 2506; Or.
Rev. Stat. §§ 44.510 et seq.; 42 Pa. Cons. Stat. Ann. §
5942; R.I. Gen. Laws §§ 9-19.1-1 et seq.; S.C. Code Ann. §
19-11-100; Tenn. Code Ann. § 24-1-208.
Connecticut State Bd. of Labor Relations v. Fagin, 370 A.2d 1095, 1097
(Conn. Super. Ct. 1976); State v. Salsbury, 924 P.2d 208 (Idaho 1996);
Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977); State v. Sandstrom,
581 P.2d 812 (Kan. 1978); In re Letellier, 578 A.2d 722, 726 (Me. 1990);
In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991);
In re Grand Jury Subpoena, No. 38,664 (Miss. 2d Cir. Ct. October 4,
1989); Mississippi v. Hand, No. CR 89-49-C (Miss. 1st Cir. Ct. July
31, 1990); State ex rel. Classic III v. Ely, 954 S.W. 2d 650, 653 (Mo.
Ct. App. 1997); State v. Siel, 444 A.2d 499 (N.H. 1982); Hopewell v.
Midcontinent Broad. Corp., 538 N.W.2d 780, 782 (S.D. 1995); Dallas Morning
News v. Garcia, 822 S.W.2d 675, 678 (Tex. App. 1991); Lester v. Draper,
No. 000906048 (Utah 3d Dist. Ct. Jan 16, 2002); Utah v. Koolmo, No.
981905396 (Utah 3d Dist. Ct. Mar. 29, 1999); State v. St. Peter, 315
A.2d 254 (Vt. 1974); Brown v. Commonwealth, 204 S.E.2d 429 (Va. 1974);
State v. Rinaldo, 689 P.2d 392, 395 (Wash. 1984); State ex rel. Hudok
v. Henry, 389 S.E.2d 188, 193 (W. Va. 1989); State v. Knops, 183 N.W.2d
93, 98-99 (Wis. 1971).