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Analysis: Despite weaknesses, media lawyers tend to support Senate bill on federal shield law

This article first appeared in the St. Louis Beacon, Nov. 16, 2009 - NEW YORK, N.Y. - Forty years ago, James Goodale was a young lawyer who had been left to mind the store while the big shots at the New York Times went off on retreat. It was an important moment in First Amendment history because Times reporter Earl Caldwell was trying to figure out how to respond to a federal subpoena for his notes on the Black Panthers.

That was the start of a 40-year crusade on the part of Goodale and First Amendment lawyers to protect reporters from having to disclose their confidential sources and notes -- a crusade that may come to partial fruition later this week when the U.S. Senate takes up its version of a federal shield law. The bill is given a good chance of passing.

In many ways the bill is the capstone of Goodale's efforts, but he confessed to a panel of lawyers last week that he had mixed feelings about the compromise legislation.

Most news organizations would benefit because the bill would give them a better chance of fending off subpoenas for confidential sources. 

But the bill would undercut the New York Times and the Washington Post, the lawyers agree, by making it hard to protect confidential sources in national security cases like the Times' 2005 disclosures of the National Security Agency's secret warrantless wiretaps. The bill also would not protect reporters' notes even though this crusade started with a subpoena for Caldwell's notes.

Goodale joined a panel of media lawyers at a Practising Law Institute conference in New York to discuss the pluses and minuses of the compromise bill, which has been negotiated with a cautious Obama administration. The panel agreed that the compromise is worth supporting despite its weaknesses.

Goodale lost the Earl Caldwell case although one wouldn't have known it for three decades after the 1972 decision in Branzburg vs. Hayes. The court ruled 5-4 that the First Amendment did not protect a reporter's right to refuse to appear before a grand jury seeking to obtain the identity of a confidential source.

Caldwell had spent hours listening to late night discussions of Black Panthers in Oakland. Some of his stories suggested the possibility of illegal use of guns and possibly a plot to kill the president. Prosecutors subpoenaed him, his notes and tape recordings. Even though the court ruled against Caldwell, one of the justices in the majority, Lewis Powell, wrote a separate concurrence saying that there would be constitutional protection if prosecutors were acting in bad faith.

Goodale then engaged in some creative math. He told courts that Powell should be counted with the four dissenters to make five votes recognizing a  constitutional reporter-source privilege. Quite a few courts believed him. Meanwhile, most states adopted shield laws giving reporters statutory protection.

This three-decade success story for media lawyers came to a halt when New York Times reporter Judith Miller initially refused to identify vice presidential aide I. Lewis "Scooter" Libby as her source for the information that Valerie Plame was a covert CIA agent.

The federal appeals court in the District of Columbia actually reread the Caldwell case and recounted the votes, rejecting Goodale's creative math. The Caldwell decision actually had rejected a constitutional protection for a reporter to withhold confidential information, the court concluded.

Miller went to jail for 85 days before she said Libby allowed her to disclose his name. Miller's jailing led to renewed media efforts to pass a federal shield law.

Goodale was asked last week if he would have been happy 40 years ago if the Supreme Court had handed down an opinion providing the protection that the proposed shield law would provide. He said no.

For one thing, the proposed bill doesn't protect reporter's notes, which once were considered sacrosanct and which were an issue in the Caldwell case. Nor would the proposed shield law protect other information in a reporter's possession such as emails and unpublished material. For this reason, the shield law would protect against only about 15 percent of subpoenas, lawyers said. Even though the federal shield law is largely the result of the backlash that followed the jailing of Judith Miller, Goodale and others said the proposed bill wouldn't have protected Miller, who never published a story about Plame.

The compromise Senate bill's biggest benefit to news organizations would be in civil cases where those seeking to obtain a reporter's confidential sources would have to show that no alternative way existed to get the information and would have the burden of proving that the value of the publication of the news was outweighed by the need to obtain the names of the confidential sources.

News organizations should win most of these cases. The new shield  should allow them to win cases they lost in the past, such as Wen Ho Lee's privacy suit against the federal government seeking the names of confidential government sources who talked to the press. News organizations had to add money to the government's settlement of the Wen Ho Lee case in order to protect their sources.

The burden of proof in criminal cases would switch to the news organization. Without alternative ways for prosecutors to get information, a news organization would have to show that the public interest in publication was greater than the prosecutor's need for information. Not only is the burden of proof on the press, but the burden is high -- proof by "clear and convincing" evidence.

Nevertheless, media lawyers believe that they would win cases they might lose today without a shield law. A good example is the Balco case where San Francisco Chronicle reporters obtained secret grand jury transcripts implicating Barry Bonds in steroids use.

Eve Burton, Hearst's lawyer, thinks the Chronicle could carry its burden because of the strong public interest served by the stories, which led to Congress holding hearings and Major League Baseball changing its steroids policy.

National security cases would be hard to win. The bill has no privilege at all in cases where the information sought by the government would assist in preventing or mitigating a terrorist act or a harm to national security. Where the government can't make that showing, then the test for criminal cases kicks in -- setting a high bar for the press.

Some of the lawyers on the panel thought that news organizations such as The New York Times and Washington Post would find it harder to win these cases after the shield law passed than today. The press will be seen as having agreed to compromises of the shield law, including the high standard for winning national security cases.

Media lawyers won't be able to make a First Amendment argument in the next few years after the law passes, Goodale said, because they will have been viewed as having given up the argument to win the shield protection.

Burton, the Hearst lawyer, put it this way: "The real compromise is whether put all reporters under the bus to protect national security reporting. ... It is a Washington Post and New York Times dilemma. Most national security reporting will get no protection. We've had our day in Congress and we have agreed to give it up."

One lawyer recalled that Howard Simons, former managing editor of the Washington Post, had opposed a shield law for just this reason: If you are asking for this protection, you are admitting you don't have it, Simons would say. And the legislative process can be unpredictable once you've submitted yourself to it.

Still, the benefit of the new law will be significant for most of the press, Burton said. Subpoenas at Hearst papers continue to mount, she said, having climbed to 152 in the first 11 months of this year, compared to 111 during the same period last year, 104 the previous year and only a smattering the year before that.

George Freeman, lawyer for the New York Times, said he might have been able to win a case protecting the sources of the NSA wiretaps stories. He noted that the stories served a strong public interest in divulging possibly unconstitutional behavior by the Bush administration and prompting a congressional response.

But the consensus among the lawyers on the panel was that this would be a hard case to win. The Bush administration had maintained that publication of the information would alert terrorists to U.S. intelligence gathering techniques and leave the Times with bloody hands when the next terrorist attack occurred.

Even though the media lawyers on the panel represented established news organizations, they were pleased that the Senate bill has a broad definition of who is a journalist, removing the requirement that a journalist earn his or her living by the profession. As a result, citizen journalists and journalism students would be covered.

This broader definition would include David Protess and the Northwestern University journalism students in his Medill Innocence Project, which has helped free unjustly convicted men from death row.

Currently Protess is embroiled in a fight with a Chicago-area prosecutor who is seeking emails, grades and other information about a student class that discovered information that could free another convicted murderer. That is a state proceeding, so the federal law wouldn't apply. But Protess says the fight with the prosecutor demonstrates the need for a broad definition of journalist in the federal shield law.

Ironically, just as the press is about to win a federal shield law, much of the legal action involving anonymity relates to anonymous posters on news websites rather than anonymous sources of reporters. Even more ironic, some courts are offering more protection for anonymous posters than anonymous sources. Of the four cases on the issue decided in the past year, two have granted posters as much confidentially as sources.

(One of the cases that didn't was in Illinois where a judge ruled that some anonymous posters to the Alton Telegraph were not covered by the state shield. Their postings related to a murder case. In another Illinois anonymous postings case, ajudge ruled this month that a village trustee of a Chicago area town should be told the name of an anonymous poster -- Hipcheck16 -- who allegedly defamed her son in an around the time of an election.)

Freeman, the New York Times lawyer, said it doesn't make sense to him to grant posters as much anonymity as sources. "You are dealing with a poster you have no contact with," he said, "You don't know them at all, you have no contact with them and it is really a stretch to call this newsgathering. Many are nutty. What they said may well be defamatory. Should I be protecting their right to be nutty?"

If new organizations try to protect the identity of anonymous posters making reckless claims, Freeman predicted, they could lose the legal immunity that now protects them from lawsuits involving posters' comments.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.