Shield Law for Reporters?
Wednesday, July 20, 2005; 11:00 AM
Time Magazine's Matthew Cooper and Norman Pearlstein are scheduled to testify Wednesday before the Senate Judiciary Committee's hearings on a proposed national shield law for reporters, which would protect members of the media from being held in contempt or put in jail for refusing to name sources. Congress is looking at building in exceptions for national security related stories. The Valerie Plame case and the jailing of New York Times reporter Judith Miller have highlighted the debate over the use and protection of confidential sources.
Read the latest: Justice Dept. Opposes Shield for Reporters.
Geneva Overholser, Chair in Public Affairs Reporting, Missouri School of Journalism, was online Wednesday, July 20, at 11 a.m. ET to discuss today's Senate Judiciary Committee hearings on a national shield law for reporters.
A transcript follows.
Jiangsu, China: Both principles held by the press and the government are reasonable, it is hard to evaluate which one is more important when they come into conflict. If journalists have always to show their confidential information to the government, they become another group of people collecting information for the government; if journalists never have to do so, they are not citizens of the U.S.
The Supreme Court 5-4 decision in the ruling of 1972 Branzburg Case suggests split in the opinions in the nine justices.
After 1972, judges in many of the lower and intermediate federal courts rewrote the Branzburg ruling. Another case involving Judith Miller and Fitzgerald also suggests variability in ruling in similar cases. Do you think all these are competition between journalists and government for truth or status of truth?
Geneva Overholser: As you suggest, determining whether journalists should be forced to testify involves a careful balancing of interests which are (on both sides) quite compelling. Any thoughtful observe I think would agree that there are occasions when journalists should indeed testify. The shield law now being considered in the Senate, for example, has exceptions for information affecting the national security.
What worries me is that the important public interest on the other side -- the need to guard against government's turning journalists into another information-gathering arm for the government -- is perhaps less readily understood.
Bethesda, Md.: My impression is that when these issues arise, it is more commonly at the state level and often involves crimes the prosecutor(s) wouldn't even be aware of without reportage. Is this correct? Has anyone systematically studied patterns? If true, it obviously affects the policy tradeoffs.
Geneva Overholser: I'm not familiar with studies or statistics, but I'm quite sure that most cases do indeed arise at the state level. And I'm certain, as well, that many of the cases are based on information that simply wouldn't be public without the reporters' work. As you suggest, this points out the importance of understanding the tradeoffs.
Shielding reporters can certainly complicate law enforcement's work. But failing to shield them may well result in less information emerging in the first place -- including, of course, information that greatly aids the law-enforcement process.
Arlington, Va.: A comment and a question. Frankly, I don't see how a federal shield law would protect Cooper and Miller. They would still be compelled to testify, because they were participants in a criminal cover-up. And why would a reporter continue to protect a source who has lied to them, repeatedly? Oh, I can answer that: access.
Geneva Overholser: It's true that there is little clarity about whether Cooper and Miller would have been protected in this case. But that doesn't make a federal shield law less desirable, in my view.
As for the question about sources' lying to reporters, it appears that Karl Rove may have been doing many things in his conversations, but I'm not sure lying was the primary issues. Moreover, sometimes a sources' lying IS the story. And, finally, it isn't easy under the heat of a deadline to know whether someone is lying or not.
Fort Collins, Colo.: I'd like to know what the Supreme Court has said in the past about this issue. Do you think this is better handled in the Senate (legislating from the bench is bad) or in the Court (they do interpret the First Amendment from time to time)?
Geneva Overholser: The Supreme Court decision on reporter's privilege dates back to 1972 and is quite complex. Its interpretation since then has made it even more complex. You can find a good summary at www.freedomforum.org, clicking on "First Amendment."
My own view, given the absence of a federal shield law, is that a law granting at least a qualified privilege is essential, and so I do welcome the involvement of Congress.
Geneva Overholser: Another good explanation of the Supreme Court's stand is atGetting to the Source
Washington, D.C.: Thanks for doing this. I am puzzled as to why Judith Miller is in jail, given that she didn't write anything. Is there a federal law that compels a citizen to divulge information unrelated to any specific action?
Also, did Robert Novak cooperate with the investigation? If he did, why is there any uncertainty as to what happened? If not, why isn't he in jail?
Geneva Overholser: Though Judith Miller did not write a story, she was conducting interviews on this subject, and therefore has information that the special prosecutor apparently finds valuable.
Novak has refused to talk about whether he has testified, but it seems clear that he has done so.
Washington, D.C.: Geneva, isn't the lack of public support just blowback for the shoddy work now practiced in so-called journalism?
For example, Ceci Connolly basically manipulated quotes via ellipsis, and dropped corrections down the memory when it came to Al Gore in 2000, making him a caricature. You yourself called her reporting "bizarre" when you were Ombud.
In any other industry, she'd be canned. In journalism, she's still a highly paid Post bylined reporter, and now with more money as a Fox News (what a shock) "All-Star".
Judy Miller was basically Chalabi's stenographer on WMD. Novak was, for all effects and purposes a co-conspirator with an Admin he ideologically likes. Cooper knew of a crime, and shut up on the details, even though Novak and others in his profession were abetting it.
"Reporters" regularly create phony narratives, and then hammer the facts until the square peg fits in a round hole (Gore and the Internet! Love Canal! Dean Screamed! Yadda, yadda). In all of these cases they were utterly wrong, but by the time they got done spinning and corrected (in a tiny box, buried inside), the damage was done, and the 'corrections' was promptly ignored for the narrative (How many times have you seen an article on the "Dean scream" that notes CNN and ABC have publicly apologized for tricking up the audio?).
And you want a shield law?! For them? Whatever for? I mean, if they were trustworthy professionals, sure. If the profession honestly self-policed, it would be understood. But the profession as it stands? Are you kidding? The last thing we need is to make these clowns even less accountable.
Shouldn't U.S. journalism clean itself up first, before demanding more privileges?
Geneva Overholser: Journalists do indeed have much to answer for, though I find your characterizations unduly harsh. I don't think, for example, that they "regularly" make up things or that the wrongdoings are maliciously intentional as your comments imply. But I do think the overuse of anonymous sources has contributed mightily to the mess we're in today.
Still, to recommend as "remedy" that we decide there will be no protection for reporters who seek to shield their sources would be hugely damaging -- and primarily damaging to the public interest. Countless stories have come our way precisely because whistle blowers were willing to speak out, confident that reporters would protect them. Journalists now report that they are already seeing a chilling effect from today's climate, in which so many reporters are facing subpoenas.
Laurel, Md.: With the proliferation of things like blogs, is a definition of "journalist" even possible?
Geneva Overholser: This is definitely one of the stickiest questions in this whole subject. There has never been any kind of certification for journalists, as you know. Unlike professions like medicine or law, there is no required degree. So it's never been easy to say who is a journalist.
Now, as you suggest, it's becoming even harder. I've been told that the best way to go about this is not to attempt to define who is a journalist, but rather to consider (in any given instance) whether the material at hand is journalism. Easier to see, for example, whether the information was gathered in the interest of the public, whether it conforms to journalistic norms, etc., than whether the one gathering it is a journalist.
Geneva Overholser: One point I think often overlooked is that journalists are generally pretty poor at speaking out on behalf of journalism. (And who else is going to do it?) So one "side" of this delicate balance of public interests is inevitably better understood, and one is often overlooked.
Evidently enough, the government has an interest in setting forth the reasons that national security, for example, will be better protected if journalists are forced to reveal their sources.
But journalists tend to think it is inappropriate for them to do anything other than journalism, which they hope will speak for itself. Mention the word "lobby," and journalists
run for the doors. So the public interest in protecting a whistleblower, whose life or work may be endangered, often gets lost.
Add to that the very skillful characterization of journalists -- by both left and right -- as ever-sleazier, ever-more-biased or ever more craven, and it's hard to get much enthusiasm going for protecting the press. But it's the public interest here that needs protecting.
Anonymous: Hi, I'm not convinced that reporters should be entirely free of oversight.
My understanding is that most of the time reporters tell editors their un-named sources, so these two people effectively decide whether to reveal the source.
I don't see any reason why journalists should be left free from judicial coercion, any more than any other citizen. After all, the FIB, police, and CIA, all depend on relations with unsavory people, yet they have no special protections as I understand the situation.
So, I don't think there is any need to change things from as they are now.
Geneva Overholser: I entirely agree that journalists should not be free of oversight. Indeed, I regularly agitate for all kinds of accountability systems, from ombudsmen (I held that job at the Post some years ago) to reader advisory councils to state news councils (as in Minnesota). Letters to the editor, bloggers, media holding each others' feet to the fire -- there are many forms of accountability, and they're growing by leaps and bounds.
But if reporters can never guarantee to a source that they will be able to shield that source from danger, we'll be a lot poorer for it. A shield law, however, would almost certainly contain some exceptions (as the one under consideration in the Senate does.)
Keep in mind that 49 states and the District of Columbia do have some kind of protection. Thirty-one states and DC have actual shield laws, and the others have at least partial protection developed in case law.
And virtually every other country with a free press has this kind of protection as well. Yet we lack it in federal law.
Escanaba, Mich.: Good afternoon.
While some journalists acknowledge the Valerie Plame story is different, they argue about a slippery slope.
While Judith Miller obviously isn't protecting a whistle blower, some journalists argue that there one day be a case where a jailed journalist just might be protecting a whistle blower. In your view, is this argument reasonable?
Also, Matthew Cooper's article revealed the race of the grand jury. What does race have to do with the events unfolding in the Plame case? Also, isn't it illegal to identify members of a grand jury?
Geneva Overholser: Good afternoon to you, too (actually, I should note that it's morning here in DC) and thanks for your question.
It seems to be not only reasonable to assume, but inevitable, that among the jailings would be people who are protecting legitimate whistle blowers. If there is no protection, what's to keep zealous prosecutors from going against the journalists? Much easier to gather the information that way than to have to dig it up elsewhere.
As for the race of jurors, the only thing I saw was Cooper noting that the majority of them were black and the majority of them women, a fact that I assume he passed along simply as a matter of interest. I don't think he made them in any way individually identifiable, did he?
Alexandria, Va.: Isn't the whole issue of whether Judith Miller wrote an article or not a red herring? The point is that she has information deemed necessary to the grand jury's work. Her complaint is, essentially, that she's being treated like every other citizen, rather than getting a special pass because she's a journalist. It also seems to me that the fact that she didn't write about the matter undercuts her argument for special treatment, because she never used the information to "inform the public" of anything. To take her argument to its logical conclusion, no journalist can ever be questioned about confidentially obtained information because he or she might someday report something.
Geneva Overholser: I think Miller's position would be that the principle of a reporter's ability to protect an anonymous source -- the notion that one must keep one's pledge to do so -- must hold under every condition (except perhaps of cases of national security, though I haven't heard her say that).
One could certainly argue that she made a wise judgment NOT to write a story -- that, perhaps, she spotted an effort to bring retribution down on the head of a whistle blower (if she considered Wilson to be one). Or that she didn't think a wife's involvement in recommending a husband for a job is a big story. Or that she understood that "outing" a CIA agent was inappropriate. In any of those cases, the choice not to do a story would be laudable. But the principle of upholding a pledge would still be at stake.
What I wish is that she hadn't made the pledge in the first place. I know it's easy for me to see, in hindsight, that this was not an appropriate thing to do -- to promise anonymity to someone planting this piece of information, which at the very least was NOT in the public interest (and may even have been a crime.)
But I also know that reporters are WAY too readily inclined to grant anonymity. It's become an addiction, and it's my hope that one outcome of the unfortunate current situation (some two dozen pending subpoenas against reporters) will be (finally!) a real pullback from this profligate use of anonymity.
Arlington, Va.: What implications do you think this proposed law would have on the future of journalism in general? Would it help provide journalists with more access to sources and therefore information? What about if there is an exception with national security stories? Does one exception lead to another exception, etc.? Do you see a need for this exception? Curious as to your thoughts on all of this, and thank you.
Geneva Overholser: I do think it would help guarantee the freer flow of information. I think there has been a broad (mis)conception that this reporter's privilege already exists. (As indeed it does, for the most part, at the state level.) And so I think whistle blowers have relied on it. And therefore we've had stories we wouldn't have had otherwise, from Watergate to the knowing actions of cigarette companies, from Abu Ghraib to Enron (all brought to light by whistle blowers).
As would-be sources become aware that they may indeed be exposed, even if reporters have promise them they won't, I do think it's reasonable to assume that information will dry up. Indeed, we're already hearing from some reporters that their sources are becoming more reluctant.
I also think it's reasonable to have some exceptions (national security) which allow for a balancing of important public interests. (Though I do worry about how all-embracing a term "national security" is getting to be!)
Some (including a friend of mine, Don Wycliff, reader's editor for the Chicago Tribune) believe a federal shield law is a bad idea -- in part because the very act of asking the government for protection weakens journalists. And because of the difficulty of defining journalists (as I've mentioned, I prefer to define the journalism in question, as opposed to the people who did it).
I respect their criticisms, but I think having no shield law is worse. Journalism is in a weakened position in the US today, and journalists have contributed to that position to some degree. But it is the public that suffers in a democracy when the press is weakened. And this (shield law)is an important strengthening step, in my mind.
Arlington, Va.: There are lots of businesses where people would find it easier to do their work if they were relieved from any responsibility to testify before a grand jury. If any business other than the media attempted such a stance, however, the press would criticize it as obstructing justice. In this chat, you've repeatedly referred to "collecting information for the government" as a bad thing, but if this is so, why limit the privilege just to the press? Why should anyone be compelled to "collect information for the government"?
Geneva Overholser: There are already numerous protections of other kinds -- for doctors, lawyers, psychiatrists, clergy. They recognize an important balancing of rights and liberties. I think this would do the same. Remember that the right being protected here is the right to gather information. The government (and the public) benefits enormously from the information gathered by journalists.
Indeed, it's interesting to note that in the Wen Ho Lee case (another case in which the reporter's privilege is now at issue) the press coverage was both extremely helpful to his case as well as problematic for him. It's usually a very complex mix.
Maliciously intentional: I'm in no way implying that. I'm implying the following (note, this is the majors, not the Podunk news)...
Groupthink. Primarily caused by the following...
3. Class of origin. Reporters used to be working class. Now even gossip columnists like Lloyd Grove are Yalies. It shows in the output (how many journos don't fit the following...pro_Nafta, socially liberal?)
4. Related to #3. Too close in attitudes and just too close (same cocktail parties, etc...) top who they cover. Upton Sinclair exposed the meat packing industry. Today's Sinclair probably went to Princeton with the owner, and plays golf with him.
5. Lack of professional accountability. If I had the track record of veracity in my reports (tech industry) as Judy Miller's WMD, or Ceci's Gore coverage, I'd be canned. They keep drawing checks and climbing up the ladder.
Add it all up, and you get massive groupthink. Here's a quote from today's Note which distills the vapidity and self-indulgence of today's major journos.
"The factor we think most likely to ensure Judge Roberts' confirmation: that the Washington establishment, and the media establishment, know him and like him. Do not underestimate how hard it will be for Democrats to tar a potential nominee who has given working Washington journalists his cell phone number and who is generally seen as a mensch. And that Seth Waxman support (He is no Zell Miller ) is just going to be the tip of the iceberg of Democrats singing in the "Amen, Roberts" choir."
Again, show us that you folks take any interest in accountability before asking for privileges.
Geneva Overholser: You're hitting a great many notes that I've hit in my long career of criticizing journalism, so I can't say I disagree with many of them.
But (as I mentioned in a previous answer) there ARE forms of accountability and I think their numbers are growing. I'm intrigued (and heartened) by the growing criticism of journalists as being TOO unwilling to question, too comfy in their insider position.
Russell Baker said that the great journalistic tradition of comforting the afflicted and afflicting the comfortable is undermined today because journalists ARE the comfortable -- a point you obviously agree with. So do I.
I just don't think throwing 'em in jail is the cure.
Alexandria, Va.: I found your comment that "journalists are generally pretty poor at speaking out on behalf of journalism" disingenuous, to say the least. There's been a huge amount written - in editorial pages and news sections - about the issues, and far more heavily in favor of special treatment for journalists and in favor of a shield law than against. In fact, the opposite argument, that journalists be held to the same obligations as other citizens, has been pretty much ignored.
Geneva Overholser: I'll grant you that editorials ring with this point now. I just wish folks would speak out regularly, and not simply in crisis.
But, in turn, I can't see how you can say the opposite point is ignored. Indeed, that is the position that's in force. It's what sent Miller to jail. It's what Fitzgerald represents, and what the DC judge gave voice to (vociferously). It's what the Justice Department is arguing on the Hill today.
What I think is most important -- and a point that gets missed by too many discussing this on BOTH sides -- is that a shield law is in the PUBLIC interest -- not a special treatment for reporters. The question is whether YOU will be unable to get access to information you need because sources won't talk to reporters who can't protect them.
Springfield, Va.: "There are already numerous protections of other kinds -- for doctors, lawyers, psychiatrists, clergy." But these professions all require training, certification and licensing. Journalism is open to anyone with a pencil or keyboard - so a shield law would apply to all of us, making the system unworkable.
Geneva Overholser: It's a challenge, for sure. But remember that folks in every state but one (and in countries with free presses across the world) seem to have figured out ways of dealing with it.
Arlington, Va.: In an earlier response, you referred to "legitimate whistle blowers", but this characterization just highlights another problem with the proposed shield law. The definition of legitimacy is subjective and easily prone to political interpretation. In the Plame matter, one could easily assert that it is legitimately newsworthy to know the extent of the CIA's involvement in generating the Wilson report, particularly since questions have since emerged about Wilson's accuracy and the CIA's credibility. Yet this matter is almost uniformly dismissed as "illegitimate whistleblowing," and it 's hard to avoid the conclusion that this is for political reasons. Why should the law recognize a privilege that is so easily manipulated on this basis?
Geneva Overholser: On the contrary, I think the law will by necessity be applied to all cases (exc. perhaps national security), leaving the political manipulation out of it.
So my view (or yours) as to what is "legitimate" whistle blowing will be beside the point. Indeed, I early on held that those reporters receiving this leak should have written about the efforts by some in the administration House to "out" a CIA agent, if that's what they understood to be happening. THAT was a story. And indeed a national security threat.
Alexandria, Va.: This isn't exactly a question about the shield law but the current situation is an example of something that I sense has happened to the media. It strikes me that everyone has become very experienced in how the media works and has learned how to use it to its own advantage. The media on the other hand continues to operate in the same way and has, because of its own inability or unwillingness, not changed its ways. This has, in my view, made the media substantially more ineffective. Do you have any comments along this line ?
Geneva Overholser: I think your points have a great deal of legitimacy. The media tend to be quite conservative (I don't mean politically, I mean in the sense that they are averse to change)
The good news (though it's surely unsettling) is that change is being FORCED upon us. The wide-open world of the Web is democratizing things. I'm heartened by that, though of course it brings on a whole new bag of worries.
I want to thank everyone for these terrific questions, and tell you how much I've enjoyed being with you. My first such chat since I was ombudsman. Hope to talk to you again.
Alexandria, Va.: Re: Judith Miller not writing a story. It seems there's a divergence between your view and Miller's, and I'm wondering if you think they can be reconciled.
You state, "-The best way to go about this is not to attempt to define who is a journalist, but rather to consider (in any given instance) whether the material at hand is journalism." That seems to assume there's some product to consider - some journalistic material produced. On the other hand, "Miller's position would be that the principle of a reporter's ability to protect an anonymous source -- the notion that one must keep one's pledge to do so -- must hold under every condition." Her view is that any time a journalist gives a pledge, even when no product is created, then that pledge is an absolute shield. So, in her view, you're only looking at "who is a journalist," not "is the material at hand journalism."
Geneva Overholser: Good point. My thought is that this question of whether the item in question is journalism would only come into play in cases that are doubtful. Question of whether a NYT reporter is a journalist wouldn't be a tough one.
I should add that, as I understand it, the law currently under consideration in the Senate does seek to define journalist. It'll be interesting to see how this plays out.
Geneva Overholser: Thanks so much for the good questions. Hope to "talk" to you all again soon. And here's to better journalism in the public interest!
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