Dodd-Frank Is a Pigouvian Regulation
abstract. Almost eight years after the passage of Dodd-Frank, financial institutions remain large, complex, and interconnected. Academics and policymakers across the ideological spectrum largely agree that Dodd-Frank has imposed substantial compliance costs on systematically important financial institutions (SIFIs) without solving the problem that they are too big to fail. This Note argues that Dodd-Frank’s compliance costs have actually served an important regulatory purpose. By analyzing the spinoffs and divestitures that have occurred at eleven SIFIs since Dodd-Frank went into effect in 2010, this Note documents the extent to which the Act’s compliance costs have led SIFIs to shed business lines of their own accord. The data reveal that regulators can adjust Dodd-Frank’s costs in response to the perceived riskiness of specific business units, and that SIFIs can respond to these adjustments by divesting the business lines that caused their compliance costs to increase—that is, SIFIs’ riskiest lines of business. In this way, Dodd-Frank has had an effect analogous to that of a Pigouvian tax—what we call a “Pigouvian regulation.” Furthermore, because Dodd-Frank grants regulators discretion to ramp up (or down) these compliance costs over time, it provides them with powerful tools to incentivize SIFIs to become less systemically important. We therefore conclude that Dodd-Frank’s compliance costs are not a mere ancillary effect of the law, but rather support the Act’s core purpose by empowering regulators to force SIFIs to divest themselves of their riskiest assets. In doing so, regulators can—and have—made financial institutions safer.
author. Aaron M. Levine, Yale Law School J.D. 2017, is an associate at Sullivan & Cromwell LLP. Joshua C. Macey, Yale Law School J.D. 2017, is a law clerk for Judge J. Harvie Wilkinson III. The views and opinions expressed in this Note are those of the authors and do not necessarily represent those of Sullivan & Cromwell LLP or its clients.
We are deeply grateful for the help we received from friends, mentors, and family in writing this Note. We would also like to thank Samir Doshi, Arjun Ramamurti, Anthony Sampson, Erin van Wesenbeeck, and Kyle Victor for fantastic feedback at numerous stages of the project, and all the editors of the Yale Law Journal for their meticulous editing. We are especially indebted to Jamie Durling and Annika Mizel for extraordinary comments, and to Professors Amy Chua, William Eskridge, Jerry Mashaw, and Jonathan Macey. All mistakes are our own.
See, e.g., Benjamin Franklin, The Autobiography of Benjamin Franklin 19 (Houghton Mifflin & Co. 1906) (1867) (describing his brother’s imprisonment in 1722 for refusing to reveal the author of an anonymous article); see also Sam J. Ervin Jr., In Pursuit of a Press Privilege, 11 Harv. J. on Legis. 233, 234 (1974) (“James Franklin’s refusal to discover the author has often been repeated by other newsmen under similar conditions.”) (internal quotation marks omitted).
See, e.g., Branzburg v. Hayes, 408 U.S. 665, 731 (1972) (Stewart, J., dissenting) (“[W]hen governmental officials possess an unchecked power to compel newsmen to disclose information received in confidence, sources will clearly be deterred from giving information, and reporters will clearly be deterred from publishing it, because uncertainty about exercise of the power will lead to self-censorship.” (internal quotation marks omitted)).
8 John Henry Wigmore, Evidence in Trials at Common Law § 2285 (John T. McNaughton rev. ed. 1961) (arguing that to justify a privilege against disclosure, the communication must be confidential; this confidentiality must be essential to the communication; the communication must be one society wants to foster; and the injury of disclosure must be greater than the benefit); see also Geoffrey R. Stone, Why We Need a Federal Reporter’s Privilege, 34 Hofstra L. Rev. 39, 39-41 (2005) (describing the instrumental goals of evidentiary privileges).
Other arguments are also made in favor of or in opposition to a privilege. See, e.g., Branzburg, 408 U.S. at 725 (Stewart, J., dissenting) (arguing that the press becomes the investigative arm of the government in the absence of a privilege); David A. Anderson, Confidential Sources Reconsidered, 61 Fla. L. Rev. 883, 903 (2009) (arguing that “[t]he most compelling objection to a comprehensive constitutional solution” is the difficulty of determining who should be able to use the privilege to protect confidential sources). But instrumental arguments are often granted primacy in the debate over the creation of a federal privilege. See discussion infra Section III.A.
There are many reasons why sources may decide to provide confidential information. See, e.g., Branzburg, 408 U.S. at 694-95 (reviewing the potential motivations of sources). David Pozen has fleshed out the contours of the ecosystem surrounding leaks and has demonstrated that the government’s upstream decision-making process about whether and to what extent the government will tolerate leaks may also have an influence on sources’ behavior. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 587-96 (2013). However, members of the press have consistently reported that their sources’ behavior is likely influenced by their perception of a reporter’s ability to protect their identity. See, e.g., Vince Blasi, The Newsman’s Privilege: An Empirical Study, 70 Mich. L. Rev. 229, 269 (1971) (presenting evidence that sources were more fearful of speaking with reporters in the wake of high-profile reporter’s privilege controversies); RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 367-69 (2009) (same); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 498 (2013) (arguing that while sources’ motivations for leaking to the press are undoubtedly diverse and individualized, “[a]ttention must also be paid to the ecosystem of secrecy and transparency, and whether some legally imposed restraint on the government’s pursuit of leakers would create conditions under which employees felt more secure in making disclosures because the Department of Justice would feel less confident in bringing prosecutions”). But see John E. Osborn, The Reporter’s Confidentiality Privilege: Updating the Empirical Evidence After a Decade of Subpoenas, 17 Colum. Hum. Rts. L. Rev. 57, 74 (1985) (arguing that the press continued to rely on confidential sources through 1975, which suggested that “most of the respondents did not appear to be affected or deterred by the various court rulings and other legal developments of the past decade”). Moreover, empirical evidence proving how sources respond to perceived changes in the legal pressures on reporters is not necessary. Common-sense reasoning has long played a central role in the law surrounding privileges. See Swidler & Berlin v. United States, 524 U.S. 399, 407, 410 (1998) (noting that although the “empirical information” was “scant and inconclusive,” the attorney-client privilege should survive after death because “[k]nowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel”); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1169 (D.C. Cir. 2006) (Tatel, J., concurring) (stating that “the equally commonsense proposition that reporters’ sources will be more candid when promised confidentiality requires no empirical support”). But see Branzburg, 408 U.S. at 693 (“[T]he evidence fails to demonstrate that there would be a significant constriction of the flow of news to the public if this Court reaffirms the prior common-law and constitutional rule regarding the testimonial obligations of newsmen.”).
In their treatise on civil procedure, Wright and Graham refer to the protections judges extend to journalists who refuse to testify as a “de facto privilege.” See Wright & Graham, supra note 7, § 5426 (footnotes omitted). For a discussion of the phenomenon of de facto or unwritten law in other legal contexts, see, for example, Jeffrey S. Adler, First in Violence, Deepest in Dirt: Homicide in Chicago, 1875-1920, at 112-13 (2006), which demonstrates that between 1875 and 1920 in Chicago, approximately eighty percent of women who killed their husbands escaped punishment, and argues that this reflected the establishment of an “unwritten law” that allowed battered women to use lethal force to protect themselves.
When a reporter violates a court order, the court’s remedy is to hold the journalist in contempt. See 18 U.S.C. §§ 401-402 (2012). The court’s power to sanction bad-faith conduct is inherent. Chambers v. NASCO, Inc., 501 U.S. 32, 42 (1991). It is also codified in statutory law today, which provides that when a court or grand jury witness refuses to testify, provide information, or comply with an order, the court “may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information,” with certain exceptions and limitations. 28 U.S.C. § 1826 (2012). The court may impose civil or criminal contempt sanctions. Different procedural and substantive protections apply for each. Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 826-27 (1994); Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631-32 (1988). Courts are granted broad discretion to fashion remedies for contempt, but those remedies must be narrowly tailored to achieve legitimate objectives. Young v. United States ex rel. Vuitton & Fils S. A., 481 U.S. 787, 801 (1987). For a general discussion of the history of the contempt power as applied to reporters, see Daxton R. “Chip” Stewart & Anthony L. Fargo, Challenging Civil Contempt: The Limits of Judicial Power in Cases Involving Journalists, 16 Comm. L. & Pol’y 425, 438 (2011).
See, e.g., Newsman’s Privilege: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 93d Cong. 259 (Feb. 20, 1973) [hereinafter Newsman’s Privilege Hearings] (statement of Rep. Jerome R. Waldie) (“[T]he ability to guarantee the confidentiality of news sources was so integral and vital a part of the functions of the press in informing society that it held a de facto status as the corollary to the general and established right of society to freedom of the press . . . . District Attorneys did not, as a matter of course, demand that confidential sources be revealed. Grand juries did not subpoena newsmen in droves to demand that pledges of confidentiality be broken. Judges did not routinely jail newsmen for the act of honoring these professional pledges of protection given to sources.”).
W.D. Lorensen, Note, The Journalist and His Confidential Source: Should a Testimonial Privilege Be Allowed, 35 Neb. L. Rev. 562, 579 (1956). The author further observed that “sympathetic attitudes frequently reflected by judges and law officers towards those newsmen who have been held in contempt perhaps reflects a latent recognition of merit in the journalist’s position.” Id. (footnote omitted); see also Note, The Right of a Newsman To Refrain from Divulging the Sources of His Information, 36 Va. L. Rev. 61, 69-75 (1950) [hereinafter Note, The Right of a Newsman] (reviewing both published and unpublished reporter’s privilege cases and noting that in many unreported cases, judges seemed to go out of their way to protect reporters and their sources).
See, e.g., Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting the Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and Information, 20 Yale L. & Pol’y Rev. 97, 130 (2002) (arguing that the privilege should be granted to anyone “engaged in gathering news for public presentation or dissemination”); RonNell Andersen Jones, Rethinking Reporter’s Privilege, 111 Mich. L. Rev. 1221, 1226 (2013) (arguing that the privilege should be held by the source under their First Amendment right to anonymous speech); Papandrea, supra note 7, at 519-20 (arguing that the privilege should be conferred on anyone who contributed information to the public domain with the intention that the public access that information); Stone, supra note 4, at 50-51 (arguing that the privilege should be legislatively defined based on the reasonable expectations of the source rather than on the nature of the journalist or publication).
See, e.g., Eric S. Fish, Prosecutorial Constitutionalism, 90 S. Cal. L. Rev. 237, 298 (2017) (arguing that the guidelines “amount to a qualified reporters’ privilege”). The guidelines explicitly aim to promote constitutional values. See 28 C.F.R. § 50.10 (2010) (emphasizing that the guidelines are intended to promote “freedom of the press” and “news gathering functions”).
Those few articles that have discussed the pre-Branzburg history have rarely looked beyond the published case law. Yet there are exceptions. An unpublished Ph.D. dissertation written in 1970 offers a deep and thorough examination of reporter’s privilege cases—both published and unpublished—prior to Branzburg. Aaron David Gordon, Protection of News Sources: The History and Legal Status of the Newsman’s Privilege (Dec. 17, 1970) (unpublished Ph.D. dissertation, University of Wisconsin) (on file with author). In addition, the 1973 book, Your Right To Know, written by former Ohio Congressman Charles Whalen, Jr., reviews the treatment of reporter’s privilege claims in courts and by legislators and also mentions a handful of unpublished cases. Charles W. Whalen, Jr., Your Right To Know (1973). A second unpublished thesis from 1984 offers a detailed examination of reporters’ efforts to shield the identity of a confidential source in early legislative proceedings. Leigh F. Gregg, The First Amendment in the Nineteenth Century: Journalists’ Privilege and Congressional Investigations (Nov. 29, 1984) (unpublished Ph.D. dissertation, University of Wisconsin—Madison) (on file with author). This Article contributes to the literature by identifying a number of new reporter’s privilege cases and disputes prior to Branzburg. It also reconciles a divide in the literature. Prior to Branzburg, scholars paid more attention to the question of how reporter’s privilege disputes were resolved at common law. But these early scholars did not have the benefit of digitized research tools, nor could they draw upon the sprawling complexities of the post-Branzburg legal landscape. This Article is the first to link the pre-Branzburg history of reporter’s privilege claims with legal and legislative developments post-Branzburg. It is also the first to examine both the formal and informal protections extended by all three branches of government.
This Section focuses on reported cases. My research also uncovered a number of unreported cases prior to 1972 in which a court punished a reporter for refusing to reveal a confidential source or required the reporter to testify. See, e.g., 2 Newsmen Freed in Contempt Case, N.Y. Times, Mar. 31, 1967, at 24 (reporting that two reporters were held in contempt and jailed for refusing to reveal sources, and were then released after surrendering the names of their informants); The Brave Reporter’s Christmas, N.Y. Times, Dec. 26, 1886, at 2 (reporting that a journalist was placed on house arrest for refusing to reveal his source of information); C.-J. Pays Fine for Reporter, Advoc. Messenger, Aug. 16, 1934, at 1 (reporting that two reporters were repeatedly jailed for several hours and fined over the course of a week for refusing to reveal the identity of two confidential sources, and were released only when the case was resolved); Columnist Fined on Contempt Charges, San Bernardino County Sun, Feb. 14, 1951, at 22 (reporting that a columnist was fined $100 for refusing to disclose his source); Court Fines Reporter $25 for Refusing To Testify, Detroit Free Press, Sept. 14, 1939, at 4 (reporting that a reporter was fined for refusing to reveal the identity of a source); Dallas Reporter Freed on His Promise to Talk, Albuquerque J., Mar. 13, 1931, at 3 (reporting that a reporter was jailed for refusing to reveal a source, then freed after naming his informant); In the Public Interest, Leavenworth Times, July 21, 1915, at 4 (reporting that an editor was fined $250 for refusing to disclose the identity of a source to a grand jury); Judge Orders Columnist To Pay Trio, Eugene Guard, Nov. 3, 1959, at 13 (reporting that a reporter who refused to disclose his source of information in a libel case was held in contempt and was not permitted to present a defense in the libel action); Judge Threatens Reporter: Fackelman Is Told To Answer Questions or Be Sent to Jail, Valley Morning Star, Aug. 17, 1937, at 1 (reporting that a reporter revealed his source after being threatened with imprisonment); Kansas Editor Is Fined, N.Y. Times, Apr. 20, 1940, at 8 (reporting that an editor was fined $25 for refusing to reveal his sources for “an editorial on gambling and liquor conditions”); The McLean Contempt Case, N.Y Times, Apr. 9, 1874, at 1 (reporting that a reporter was jailed for refusing to reveal the identity of a confidential source in a libel case); Newsman Yields on Source, N.Y. Times, July 28, 1961, at 44 (reporting that a reporter was ordered to disclose his confidential source for a newspaper column); Newspaper Reporter Cleared of Contempt, Macon Chron.-Herald, June 10, 1954, at 1 (reporting that a reporter was held in contempt and ordered jailed for refusing to reveal a source, then subsequently cleared after he agreed to testify); The Reporter and His Pointers, Kan. Wkly. Commonwealth, Aug. 19, 1886, at 5 (reporting that a reporter was jailed for failing to disclose a source); Reporter Clarkson in Jail, Atlanta Const., Nov. 21, 1896, at 1 (reporting that a reporter was jailed for refusing to reveal the identity of a source); Reporters Are Freed, Lincoln J. Star, Dec. 11, 1929, at 3 (reporting that three reporters were held in contempt and ordered jailed for forty-five days for refusing to reveal the identity of a confidential source before a grand jury); Sent an Editor to Jail, St. Paul Globe, Nov. 15, 1895, at 4 (reporting that an editor was jailed for refusing to reveal his source before a grand jury); Texas Publisher Can’t Back Corruption Charge, He Says, Courier-J. (Louisville, Ky.), Feb. 23, 1956, at 2 (reporting that a newspaper publisher was fined $100 and jailed for refusing to reveal a confidential source before a grand jury, and was released after testifying that his only source was an anonymous letter); They Must Testify, Phila. Times, Dec. 23, 1888, at 9 (reporting that a judge rejected reporters’ claim to a privilege based on “professional honor”); Two Arizona Women Testify Against Irene, Ariz. Republic, Mar. 18, 1930, at 1 (reporting that a reporter was released from jail only after revealing her source).
In 1913, the New Jersey Supreme Court rejected a privilege argument raised by a Jersey Journal reporter. The reporter refused to reveal his source for an article alleging corruption among local officials. The court reasoned that such a privilege had “no countenance in the law” and would be “detrimental to the due administration of law.” In re Grunow, 85 A. 1011, 1012 (N.J. 1913); accord In re Wayne, 4 U.S.D.C. Haw. 475, 476 (1914); Joslyn v. People, 184 P. 375, 379 (Colo. 1919). Plunkett, Grunow, and Joslyn were among the eight cases cited in Branzburg to support the claim that no privilege existed at common law. Branzburg, 408 U.S. at 685.
Garland v. Torre, 259 F.2d 545 (2d Cir. 1958); Brewster v. Bos. Herald-Traveler Corp., 20 F.R.D. 416 (D. Mass. 1957); Rosenberg v. Carroll, 99 F. Supp. 629 (S.D.N.Y. 1951); In re Howard, 289 P.2d 537 (Cal. Dist. Ct. App. 1955); Clein v. State, 52 So. 2d 117 (Fla. 1950); Brogan v. Passaic Daily News, 123 A.2d 473 (N.J. 1956). For a list of all published reporter’s privilege cases between 1911 and 1968, see Jeffrey C. Schreck, Case Comment, Journalist’s Privilege: In re Farber and the New Jersey Shield Law, 32 Rutgers L. Rev. 545, 546 n.7 (1979).
See Anthony L. Fargo, The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists, and the Uncertain Future of the Federal Journalist’s Privilege, 14 Wm. & Mary Bill Rts. J. 1063, 1072 (2006). Yet newspaper records suggest that reporters raised this constitutional argument in unreported cases and in the context of legislative proceedings earlier than 1958 and that these constitutional arguments were occasionally successful. See infra note 191.
Nick Ravo, Marie Torre, 72, TV Columnist Jailed for Protecting News Source, N.Y. Times (Jan. 5, 1997), http://www.nytimes.com/1997/01/05/nyregion/marie-torre-72-tv-columnist-jailed -for-protecting-news-source.html [http://perma.cc/W8HS-EBUU].
See, e.g., Adams v. Associated Press, 46 F.R.D. 439, 440 (S.D. Tex. 1969) (stating that the court would follow other jurisdictions in denying a reporter’s privilege); Brewster v. Boston Herald-Traveler Corp., 20 F.R.D. 416, 417 (D. Mass. 1957) (noting that no American jurisdiction had recognized a common law reporter’s privilege).
See, e.g., In re Taylor, 193 A.2d 181, 185 (Pa. 1963) (holding that the “public welfare will be benefited more extensively and to a far greater degree by protection of all sources of disclosure of crime, conspiracy and corruption than it would be by the occasional disclosure”); State v. Knops, 183 N.W.2d 93, 99 (Wis. 1971) (applying a balancing test to find that “the appellant ha[d] a constitutional right to the privilege not to disclose his sources of information” but that “[u]nder the facts and circumstances of this case, we think the public’s right to know outweighs the appellant’s right of privilege”).
See, e.g., Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), rev’d sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972); In re Grand Jury Witnesses, 322 F. Supp. 573 (N.D. Cal. 1970); Branzburg v. Pound, 461 S.W.2d 345 (Ky. Ct. App. 1971), aff’d sub nom. Branzburg, 408 U.S. 665; In re Pappas, 266 N.E.2d 297 (Mass. 1970), as modified on denial of reh’g (1971), aff’d sub nom. Branzburg, 408 U.S. 665; State v. Buchanan, 436 P.2d 729 (Or. 1968); Adams, 46 F.R.D. 439; Knops, 183 N.W.2d 93; see also Ervin, supra note 1, at 243-46 (discussing the link between social unrest and the increase in reporter’s privilege disputes); Fargo, supra note 45, at 1073-74 (same).
See Stephen Bates, The Reporter’s Privilege, Then and Now 3-4 (Joan Shorenstein Ctr. on the Press, Politics & Pub. Policy, Research Paper R-23, 2000). An appendix to an amicus brief submitted by the New York Times and other media companies in Branzburg illustrates the extent to which the government relied on press subpoenas to collect information about left-wing groups in the late 1960s and early 1970s. Brief for The N.Y. Times Co. et al. as Amici Curiae Supporting Respondent, United States v. Caldwell, 408 U.S. 665 (1972) (No. 70-75) (listing 123 subpoenas served upon NBC and CBS between January 1969 and July 1971, many of which sought information about left-wing groups).
Id. at 678. This May subpoena was the third one issued. Caldwell was initially served a subpoena duces tecum in February 1970. Id. at 675. This subpoena required him to bring notes and tapes from his interviews with Black Panther members “concerning the aims and purposes” of the organization. Id. at 676 n.12. The New York Times objected to the scope of the subpoena, and an agreement between the government and the paper resulted in a continuance. Id. at 675-76. A second subpoena served in March omitted the documentary requirement. Id. at 676-77. The district court denied the motion to quash, and the grand jury term expired. Id. at 677-78. The government issued a third subpoena in May. Id. at 678.
Id. at 677-78. The court did issue a protective order providing that Caldwell would “not be required to reveal confidential associations, sources or information received, developed or maintained by him as a professional journalist in the course of his efforts to gather news for dissemination to the public through the press or other news media.” Id. at 678.
Id. The court did issue an order protecting Branzburg from revealing “confidential associations, sources or information,” but requiring him to “answer any questions which concern or pertain to any criminal act, the commission of which was actually observed by [him].” Id. at 670 (alteration in original) (internal citation omitted).
In 2007, Eric Freedman found a handwritten note in Justice Powell’s conference notes discussing his thoughts on the case. See Adam Liptak, A Justice’s Scribbles on Journalists’ Rights, N.Y. Times (Oct. 7, 2007), http://www.nytimes.com/2007/10/07/weekinreview/07liptak.html [http://perma.cc/9T9V-HJ5V]. At conference, Justice Powell had noted: “It would be unwise . . . to give the press any constitutional privilege and we’re writing on a clean slate, so we don’t have to give constitutional status to newsmen. I’d leave it to the legislatures to create one.” Bernard Schwartz, The Ascent of Pragmatism: The Burger Court in Action 165 (1990); see also Sean W. Kelly, Black and White and Read All Over: Press Protection After Branzburg, 57 Duke L.J. 199, 209-10 (2007) (noting that in reference to Pappas, Justice Powell wrote, “[A]s I have concluded there is no constitutional privilege, I have no choice but to affirm”; and that in reference to Caldwell, he wrote, “I will make clear in an opinion . . . that there is a privilege analogous to an evidentiary one, which courts should recognize & apply in case by case to protect confidential information” (alterations in original) (footnote omitted)).
There is an extensive body of legal literature examining the meaning, scope, and legacy of Branzburg. See, e.g., Randall D. Eliason, The Problems with the Reporter’s Privilege, 57 Am. U. L. Rev. 1341, 1342 (2008) (arguing that the Branzburg Court reached the right outcome and that claims supporting the push for a legislative shield “rest on a shaky or even non-existent foundation”); Monica Langley & Lee Levine, Branzburg Revisited: Confidential Sources and First Amendment Values, 57 Geo. Wash. L. Rev. 13, 50 (1988) (arguing that Branzburg should not apply to privilege claims involving government sources because “[t]he years following Branzburg witnessed a marked transformation both in the predominant use of confidential relationships in the newsgathering process and in the Supreme Court’s explication of the constitutional doctrine that undergirds its analysis in Branzburg”); Richard A. Posner, A Political Court, 119 Harv. L. Rev. 31, 95 n.191 (2005) (referring to Branzburg as a “notorious example” of the confusion that flows when the fifth vote for the majority writes separately and qualifies the Court’s opinion); Stone, supra note 4, at 44-45 (citing the confusion sown by Branzburg to make the case for establishing uniformity in the law with the enactment of a statutory shield); Sonja R. West, Concurring in Part & Concurring in the Confusion, 104 Mich. L. Rev. 1951, 1954 (2006) (arguing that Justice Powell’s concurrence should not be “relegated . . . to nothing more than judicial residue”).
See, e.g., United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013) (finding that there is “no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in,” absent a showing of an illegitimate motive).
Compare Farr v. Pitchess, 522 F.2d 464, 466 (9th Cir. 1975) (“It is clear that Branzburg recognizes some First Amendment protection of news sources.”), with In re Grand Jury Proceedings, 810 F.2d 580, 583 (6th Cir. 1987) (“[T]he majority opinion in [Branzburg] rejected the existence of such a first amendment testimonial privilege.”).
Compare Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 35 (2d Cir. 1999) (holding that a qualified privilege for reporters “applies to nonconfidential, as well as to confidential, information”), with United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998) (holding that “newsreporters enjoy no qualified privilege not to disclose nonconfidential information in criminal cases”).
RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 Minn. L. Rev. 585, 595 (2008). One obstacle to these early shield laws was the press itself. Many members of the press believed that Branzburg had been wrongly decided. They eschewed any effort to create statutory protections on the grounds that protection should be based in the Constitution. See Lucy A. Dalglish & Casey Murray, Déjà Vu All Over Again: How a Generation of Gains in Federal Reporter’s Privilege Law Is Being Reversed, 29 U. Ark. Little Rock L. Rev. 13, 42 (2006).
Congress has enacted statutory protections for the press in related contexts. For example, in 1978 the Supreme Court held in Zurcher v. Stanford Daily that the government’s search of Stanford’s newsroom did not violate the First Amendment. 436 U.S. 547 (1978). Two years later, Congress enacted the Privacy Protection Act, which prohibits law enforcement agents from searching or seizing records or other information from those who disseminate information to the public. Pub. L. No. 96-440, 94 Stat. 1879 (1980) (codified as amended at 42 U.S.C. §§ 2000aa to 2000aa-12 (2012)). This legislation is clearly intended to protect reporters and their sources. In an effort to cabin the scope of the discussion, however, this section focuses on the narrower issue of legislative action specifically in the context of an evidentiary shield for the press.
Jones, supra note 114, at 602 n.100 (noting only one proposed shield law in the 1980s); Kathryn A. Rosenbaum, Protecting More Than the Front Page: Codifying a Reporter’s Privilege for Digital and Citizen Journalists, 89 Notre Dame L. Rev. 1427, 1447 (2014) (noting that “attention to passing a bill waned without high-profile cases that invoked a reporter’s privilege in the 1990s”).
See The History of Shield Legislation, 31 News Media & L. 8 (2007), http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-winter-2007/history -shield-legislation [http://perma.cc/2UFQ-EB2P] (noting that only two shield laws were proposed in Congress between 1979 and 2004).
In 2005, Judith Miller was found in contempt of court and jailed for nearly three months for refusing to reveal a source. Susan Schmidt & Jim VandeHei, N.Y. Times Reporter Released from Jail, Wash. Post (Sept. 30, 2005), http://www.washingtonpost.com/wp-dyn/content /article/2005/10/19/AR2005101900795.html [http://perma.cc/YK96-2BRT].
Free Speech Protection Act of 2004, S. 3020, 108th Cong. (2004); see also Leslie Siegel, Trampling on the Fourth Estate: The Need for a Federal Reporter Shield Law Providing Absolute Protection Against Compelled Disclosure of News Sources and Information, 67 Ohio St. L.J. 469, 509 (2006) (describing the legislative history surrounding the bill).
Free Flow of Information Act of 2005, S. 1419, 109th Cong. (2005). While both the 2004 and 2005 proposed shield laws offered protection against compelled disclosure of sources and other confidential information, they differed in some important respects. For example, the 2005 bill focused on protecting news “entities” and their employees and contractors, id. § 5, while the 2004 bill built its protection around the act of newsgathering, S. 3020 § 2. The 2005 bill also distinguished between civil and criminal proceedings, S. 1419 § 2, while the 2004 bill established the same three-pronged test for both, S. 3020 § 3.
See id.; Randall Eliason, The Ongoing Debate over the Reporter’s Privilege, Sidebars (June 22, 2015), http://sidebarsblog.com/2015/06/22/the-ongoing-debate-over-the-reporters -privilege [http://perma.cc/BN6C-TRXV].
Free Flow of Information Act of 2013, S. 987, 113th Cong. § 11(1)(B) (2013); see also David Greene, Senate Revises Media Shield Law for the Better, but It’s Still Imperfect, Electronic Frontier Found. (Sept. 20, 2013), http://www.eff.org/deeplinks/2013/09/senate-revises-media -shield-law-better-its-still-imperfect [http://perma.cc/EZB6-MBE4] (endorsing the bill’s adoption of a “functional” definition of a reporter, in which protection is granted to anyone who functions as a journalist, versus a “status” definition that limits protection to individuals employed by or formally affiliated with a media organization).
See Lauren J. Russell, Shielding the Media: In an Age of Bloggers, Tweeters, and Leakers, Will Congress Succeed in Defining the Term “Journalist” and in Passing a Long-Sought Federal Shield Act?, 93 Or. L. Rev. 193, 216 (2014) (explaining that the discretionary provision was inserted as a compromise between lawmakers who advocated a broader definition of a journalist and those who were concerned an overly broad definition would sweep in organizations like WikiLeaks under the umbrella of the bill).
See, e.g., Wright & Graham, supra note 7, § 5426 (noting that protections extended by the Attorney General and the federal courts meant there was a “declining sense of urgency” that caused efforts to enact a legislative shield to “grind to a halt”); Jones, supra note 114, at 602 (arguing that the “legislative fervor” of Congress diminished due to the reading of Branzburg by the lower courts).
See Tofani v. State, 465 A.2d 413, 415 (Md. 1983) (noting that Maryland’s shield law “was prompted by a specific event: In early 1896, John T. Morris, a Baltimore Sun reporter, published an article suggesting that certain elected officials and policemen were on the payrolls of illegal gambling establishments,” and, after he was jailed for refusing to reveal his source for the article, “[t]he Journalists’ Club, alarmed at the prospect of reporters having to choose between freedom and revealing the names of confidential sources, persuaded the General Assembly to enact protective legislation” (citation omitted)); cf. Gordon, supra note 23, at 451-87 (arguing that the incident with Morris likely played a role in the statute’s enactment, but that the importance of the Morris dispute may have been overstated by judges and legal historians, and noting that the incident involving Morris may have occurred a decade prior to the enactment of the state shield law).
In 1933, New Jersey enacted the nation’s second state shield law. Other states acted soon thereafter: Alabama and California passed shield laws in 1935; Kentucky and Arkansas in 1936; Arizona and Pennsylvania in 1937; Indiana and Ohio in 1941; and so on. John J. Watkins, The Journalist’s Privilege in Arkansas, 7 U. Ark. Little Rock L.J. 473, 479 n.23 (1984). By June of 1972, when Branzburg was handed down, seventeen states had enacted shield laws. Branzburg v. Hayes, 408 U.S. 665, 689 n.27 (1972).
See, e.g., Gordon, supra note 23, at 597-98, 600-01 (explaining that Kentucky’s shield law was passed partly in response to backlash following the imprisonment of two Danville Advocate reporters for contempt, and that this same incident may have influenced the enactment of Alabama’s shield law as well); id. at 397 (noting that Louisiana’s shield law may have been enacted in response to the state court’s denial of a privilege for a Baton Rouge State-Times reporter).
Other state officials have also acted to protect reporters. For example, Paul Branzburg was ordered jailed for six months but avoided imprisonment after the governor of Michigan refused to extradite the reporter to Kentucky. Branzburg reportedly stated, “When the legal drama ended, I still had not revealed my sources . . . . I knew all along it would end that way.” Kelly, supra note 102, at 205 (citing Francis Wilkinson, Essays in Essential Liberty: First Amendment Battles for a Free Press 91, 93 (1992)).
For a list of these statutes, see United States v. Sterling, 724 F.3d 482, 532 (4th Cir. 2013). Hawaii’s shield law has since expired. The state has not yet reinstated it, in large part due to disagreements over who should qualify for protection. See Brett Oppegaard, Reader Rep: Hawaii Should Reinstate Shield Law Immediately, Honolulu Civ. Beat (Nov. 7, 2016), http://http://www.civilbeat.org/2016/11/reader-rep-hawaii-should-reinsate-its-shield-law-immediately [http://perma.cc/6P5K-RU94].
See, e.g., O’Neill v. Oakgrove Constr., 523 N.E.2d 277, 277-78 (N.Y. 1988) (“Article I, § 8 of the New York State Constitution and, we believe, the First Amendment of the Federal Constitution as well, provide a reporter’s privilege which extends to confidential and nonconfidential materials . . . .”).
See Gregg Leslie, What’s Up with Wyoming and the Reporter’s Privilege?, Reporters Committee for Freedom of Press (Fall 2008), http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2008/whats-wyoming-and-reporters-p [http://perma.cc/7MJS-PB5B].
Compare, e.g., Md. Code Ann., Cts. & Jud. Proc. § 9-112(c)(1) (LexisNexis 2013) (creating an absolute privilege against compelled disclosure for “[t]he source of any news or information procured by the person while employed by the news media or while enrolled as a student, whether or not the source has been promised confidentiality”), with N.Y. Civ. Rights Law § 79-h(c) (McKinney 1992) (establishing a qualified privilege for nonconfidential information).
Compare, e.g., Cal. Const. art. I, § 2(b) (protecting “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed” and “a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed”), with N.C. Gen. Stat. § 8-53.11(a)(1) (2015) (extending the privilege to “[a]ny person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium”).
For example, when New York Times reporter Judith Miller was jailed for refusing to reveal a confidential source in federal proceedings, the Times ran sixty-four stories and letters mentioning Miller in three months. And on July 7, 2005, the day after Miller was imprisoned, 285 newspapers in the Newspapers.com archives database ran stories about Judith Miller. Roughly a third of those stories ran on the newspaper’s front page. See 285 Matches for Judith Miller on July 7, 2005, Newspapers.com, http://go.newspapers.com/results.php?query= judith+miller&s_place=&date_field=july+7%2C+2005 [http://perma.cc/SGD6-UCZ9].
See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1170 (D.C. Cir. 2006) (Tatel, J., concurring) (noting that denial of a federal privilege “would . . . buck the clear policy of virtually all states”); Brief Amici Curiae of the States of Oklahoma et al., supra note 146, at *3 (arguing that “increasing conflict has undercut the State shield laws just as much as the absence of a federal privilege”); cf. Jaffee v. Redmond, 518 U.S. 1, 13 (1996) (noting that “any State’s promise of confidentiality [between therapists and patients] would have little value if the patient were aware that the privilege would not be honored in a federal court,” and “[d]enial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications”).
In this way, this Article attempts an approach similar to what David Pozen has referred to as a “positive theory in the middle range,” in that it is focused less on “higher-level normative accounts of the information state” and more on how the surrounding ecosystem actually works. Pozen, supra note 11, at 634.
This Section confines itself to judicial treatment of direct privilege claims. The courts have also extended protections in other realms that bear on press protections in this arena. The most significant example of this is the 1971 decision in New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713 (1971). There, the Court held that the government could not issue a prior restraint against publication of classified material unless the information in question would result in “direct, immediate, and irreparable damage to our Nation or its people.” Id. at 730 (Stewart, J., concurring). Thirty years later, the Court ruled in Bartnicki v. Vopper that the press is not liable for publishing information unlawfully obtained if the information is of public importance. 532 U.S. 514, 535 (2001). These decisions obviously limit the risk and exposure of the press when publishing leaked information and therefore offer the press an important source of protection. But they do not squarely implicate the question of whether a reporter is protected when compelled to reveal a confidential source. For a general discussion of the yawning gap in protections between source and distributor, see Pozen, supra note 11, at 516.
There is a rich body of law and economics literature grappling with this problem of selection bias in litigation. See, e.g., Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J. Legal Stud. 337 (1990); Samuel R. Gross & Kent D. Syverud, Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial, 90 Mich. L. Rev. 319 (1991); George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984). In The Selection of Disputes for Litigation, Priest and Benjamin demonstrate that “the disputes selected for litigation (as opposed to settlement) will constitute neither a random nor a representative sample of the set of all disputes.” Priest & Klein, supra, at 4.
A number of scholars have tried to determine the extent to which the internet has opened the door for judges to rely on authority outside of published case reports. For example, Frederick Schauer and Virginia Wise argued in 1997 that “[a]s numerous technological, economic, and institutional developments make lawyers’ use of so-called ‘nonlegal’ sources more and more prevalent, the informational line between law and nonlaw becomes increasingly tenuous.” Frederick Schauer & Virginia J. Wise, Legal Positivism as Legal Information, 82 Cornell L. Rev. 1080, 1082 (1997). They noted that there was no significant increase in the Supreme Court’s reliance on “nonlegal” sources, such as nonlegal journals and books, from 1950 to 1990, but a substantial increase in the use of nonlegal sources from 1991 to 1997. Id. at 1108; see also Robert C. Berring, Legal Information and the Search for Cognitive Authority, 88 Calif. L. Rev. 1673, 1689-90 (2000) (describing the significant expansion of the number and type of legal authorities cited in Supreme Court decisions from 1899 to 1999).
For examples of legal scholars relying on newspaper accounts of legal proceedings, see, for example, Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 Colum. L. Rev. 957 (2000), who relied on newspaper accounts of a single trial to examine the evolution of the doctrine of common-law marriage; James Oldham, Law Reporting in the London Newspapers, 1756-1786, 31 Am. J. Legal Hist. 177 (1987), who reviewed newspaper accounts of legal proceedings in London from 1756-1786 to understand the way the press covered trials; Jeremy Patrick, Beyond Case Reporters: Using Newspapers To Supplement the Legal-Historical Record (A Case Study of Blasphemous Libel), 3 Drexel L. Rev. 539 (2011), who examined two newspaper archives from 1898-1945 and from 1882-2003 to supplement the existing legal historical record on blasphemous libel prosecutions and discovered twenty-one new cases of blasphemous libel; and Kim Stevenson, Unearthing the Realities of Rape: Utilising Victorian Newspaper Reportage To Fill in the Contextual Gaps, 28 Liverpool L. Rev. 405 (2007), who reviewed newspaper archives to fill in key information about sexual rape and sexual offenses, which were often elided or obscured in the case reports.
For example, Google began digitizing microfilm from newspapers’ archives in 2008. Miguel Helft, Google To Digitize Newspaper Archives, N.Y. Times (Sept. 8, 2008), http://www.nytimes.com/2008/09/09/technology/09google.html [http://perma.cc/K2NE-9RFP].
For example, the Federal Reporter, which John B. West started publishing in 1880, contained appellate and district court decisions. 1 Federal Reporter: Cases Argued and Determined in the Circuit and District Courts of the United States (1880); Thomas A. Woxland, Forever Associated with the Practice of Law: The Early Years of the West Publishing Company, 5 Legal Reference Serv. Q. 115, 116 (1985).
New York established a reporting system for lower court decisions in 1892. Gary D. Spivey, Two Centuries of Law Reporting, 1 Jud. Notice (The Historical Soc’y of the Courts of the State of N.Y., White Plains, N.Y.), Spring/Summer 2004, at 7, 9. But it was not until the mid-twentieth century that lower court decisions were routinely preserved. See Charles J. Stiegler, The Precedential Effect of Unpublished Judicial Opinions Under Louisiana Law, 59 Loy. L. Rev. 535, 539 (2013). And it was not until the 1970s that unpublished decisions were recorded in the law reports with any consistency. Fed. Judicial Ctr., Standards for Publication of Judicial Opinions: A Report of the Committee on Use of Appellate Court Energies of the Advisory Council on Appellate Justice, FJC Research Ser. No. 73-2, 13-14 (1973).
John O. McGinnis & Steven Wasick, Law’s Algorithm, 66 Fla. L. Rev. 991, 1003 (2014). Many written legal records from this era were also lost to fires. See, e.g., Kurt X. Metzmeier, Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky (2016) (describing how a fire in 1865 destroyed virtually all legal records from the Kentucky Court of Appeals).
See Danaya C. Wright, De Manneville v. De Manneville: Rethinking the Birth of Custody Law Under Patriarchy, 17 Law & Hist. Rev. 247, 286 n.141 (1999) (noting that for much of the nineteenth century, decisions were issued orally and preserved only if someone was present at the proceedings to transcribe them). Lawyers would sometimes keep and circulate their written notes on legal decisions. Some judges also kept internal records of their decisions, and would occasionally publish a compilation. See Metzmeier, supra note 165 (explaining that “[j]udges also kept notebooks, called bench books, that contained copies of decisions rendered during their time on the court,” and noting that occasionally judges published a volume of reports based on these books).
This changed in the early to mid-twentieth century, with the continued expansion of West Publishing and the reduced costs of maintaining court records. More lower court decisions were preserved, and the publishing process began to become standardized, allowing lawyers to cross-reference cases and legal issues more easily. Stiegler, supra note 164, at 538-39.
See id. at 541; Parrish, supra note 167, at 114-15 (“Newspapers from the time period in question are often an excellent source of information about the major figures and major legal events, such as trials.”); see also Oldham, supra note 159 (noting that the London newspapers of the second half of the eighteenth century “contained a surprising amount of information about court proceedings” (footnote omitted)).
Examples of such articles are discussed infra Sections II.A.2-4. See also Patrick, supra note 159, at 540-41 (describing the different types of information newspaper accounts of legal proceedings can provide in comparison with more traditional legal sources); Stevenson, supra note 159, at 406 (“The extent to which social and moral factors were and are taken into account when determining guilt or innocence, and how that might affect the application of doctrinal legal rules and principles, cannot be fully uncovered or evaluated using singular preferred traditional sources such as the law reports and critique of judicial opinions.”).
This canon also includes cases in which an action was brought directly against the reporter or newspaper. In Branzburg, the Court cited eight cases involving reporter’s privilege disputes to support its conclusion that “[a]t common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury.” Branzburg v. Hayes, 408 U.S. 665, 685 (1972). In one of those eight cases, the court held that a reporter must surrender the name of his confidential source in the context of a defamation case against his employer. See Adams v. Associated Press, 46 F.R.D. 439, 441 (S.D. Tex. 1969).
Many of these historical examples involve reporter’s privilege claims that arose in the course of local proceedings or disputes—in other words, in contexts in which national security concerns are not implicated. I contend that this should not be a bar to applying the de facto lens to the national security context. First, the published and unpublished case law is equally devoid of cases involving national security claims, so cabining off the historical judicial de facto privilege to the non-national security context would necessarily require cabining the reported case law as well. See Pozen, supra note 11, at 534 & n.114 (explaining that “common wisdom” is that there have been eleven national security-related leak investigations, the first brought in 1973, but noting that the 1945-1946 pursuit of individuals involved with the left-wing magazine Amerasia and the 1957 court martial of John C. Nickerson, Jr. for leaking classified information about the Army’s ballistic missile project could arguably qualify as well). Second, there is little clear policy rationale for limiting the de facto privilege to the non-national security context. The de facto privilege lens, broadly conceived, reveals a long history and tradition of protecting reporters who are pressed to reveal confidential information. The motivations driving this protection—in particular, the desire to protect the public’s access to information—apply equally in the context of national security cases. While the public interest in determining the source of a national security leak is presumably higher than in the non-national security context, the public’s interest in learning about the government’s covert activities is often heightened as well. See In re Grand Jury Subpoena, 438 F.3d 1141, 1173-74 (Tatel, J., concurring) (noting that some leaks “caus[e] harm far in excess of their news value,” and “[i]n such cases, the reporter privilege must give way,” while “in some cases a leak’s value may far exceed its harm, thus calling into question the law enforcement rationale for disrupting reporter-source relationships”).
Cases in which a judge gave an exceptionally broad or favorable reading to state statutory shields arguably qualify as a form of judicial protection. I refrained from including these cases in my review in order to avoid conceptual confusion between the protections extended by the judicial branch versus those extended by state legislatures.
The search functions for many of these databases are crude, and searching disconnected words like “editor” and “privilege” yielded too many results. To overcome this, I searched for phrases, such as “reporter imprisoned” or “reporter released.” I tried a wide variety of combinations of terms—for example, matching “reporter,” “journalist,” “editor,” and “newspaperman,” with “jailed,” “in contempt,” “freed,” or “released.” I also tried phrases such as “refuses to reveal” or “protects source.” This approach is undoubtedly underinclusive. It did not, for example, capture relevant results like “editor John Doe released.”
This Article does not provide a detailed comparison of the number of unpublished cases granting favorable versus unfavorable treatment to reporters for two reasons. First, these categories are not mutually exclusive—for example, cases in which a reporter was initially jailed but quickly released due to public outcry arguably fall within both categories. See, e.g., infra notes 267-273. Second, I identified cases by plugging a wide variety of search terms into various historical newspaper databases. See supra note 177 and accompanying text. This trial-and-error approach does not lend itself well to strict empirical conclusions—a new combination of terms could turn up new sets of relevant cases. That being said, these searches did not yield a significantly larger number of examples on either side of the ledger. Broadly speaking, these searches turned up very roughly the same number of examples of favorable treatment extended to the press as unfavorable treatment.
News Sources Confidential Says Chicago Judge, Fourth Est. (New York), Mar. 17, 1917, at 2; see also Chicago Circuit Court Makes Important Ruling, Chester Times, Mar. 9, 1917, at 9 (“That no newspaper can be forced to disclose the source of its information concerning articles it publishes and that no one can be forced to tell who wrote the article was the ruling made by Judge Baldwin of the Circuit Court.”).
Prosecution Rests in Trial of Rifle Gang: Court Backs Eagle Man Refusing To Testify on Events After Arrests, Brooklyn Daily Eagle, Aug. 20, 1935, at 2. The journalist had written a series of stories about a local rifle gang, and he was summoned as a witness at the trial of four of the gang’s members. The reporter refused to testify on the grounds that his sources of information were privileged. The judge agreed. Reporter’s Data Held Privileged by Court: Queens Judge Rules He Need Not Testify on Methods of Police in Robbery Case, N.Y. Times, Aug. 20, 1935, at 6.
When reporter Charles Pierce refused to reveal his source for a story about movie theaters showing films on Sunday evenings (in violation of Mississippi state law), the judge reportedly held that “to force Pierce to reveal his source of information would be an encroachment upon the freedom of the press.” Protection of News Sources Upheld, Delta Democrat-Times, Aug. 17, 1949, at 1; Theaters and Police Wage Sunday Battle, Statesville Daily Rec., July 25, 1949, at 9. Even prior to the Mississippi case, a reporter had raised a First Amendment defense in the context of a legislative hearing. In August 1938, an editor for the New Mexico Examiner refused to reveal to the state legislature his source of information for an editorial alleging that the state’s governor was involved in an effort to buy congressional votes. An article reporting on the hearing noted that the editor “based his refusal on the constitutional freedom of the press.” House Inquiry of Charges Is Completed, Albuquerque J., Aug. 30, 1938, at 1. The 1958 case Garland v. Torre is often cited as the first case in which a reporter claimed a privilege rooted in constitutional protections for the press. 259 F.2d 545 (2d Cir. 1958); see, e.g., Fargo, supra note 45, at 1072. And yet the newspaper accounts of the Mississippi and New Mexico cases suggest that reporters were raising First Amendment claims in court decades earlier.
A Misused Pardon, N.Y. Times, Jan. 27, 1915, at 8. Curiously, five years later, a Seventh Circuit case presented a very similar fact pattern to Burdick, but the court rejected the reporter’s Fifth Amendment claim. Elwell v. United States, 275 F. 775 (7th Cir.), cert denied, 257 U.S. 647 (1921). The Seventh Circuit never even cited Burdick, and the Supreme Court denied certiorari.
See Distillery Seeks Alcohol Permit, Harrisburg Telegraph, Dec. 1, 1933, at 1. One commentator wrote that there are different explanations for the court’s lenient attitude. The fact that the testimony was relevant to a civil rather than a criminal proceeding may have compelled the court to expand the scope of the traditional forfeiture of estate defense to provide an alternative ground for protecting the reporter. Alternatively, the witness who took the stand after the reporter revealed that the deputy attorney general had been the confidential source, and the court may have protected the journalist on the ground that testimony was available from another source. See Talbot D’Alemberte, Journalists Under the Axe: Protection of Confidential Sources of Information, 6 Harv. J. Legis. 307, 316-17 (1969).
See Melanie B. Leslie, The Costs of Confidentiality and the Purpose of Privilege, 2000 Wis. L. Rev. 31, 48. But see Jonathan Auburn, Legal Professional Privilege: Law and Theory 7-8 (2000) (arguing that early privileges “may from the start have been grounded on fairly straight-forward considerations of practicality that are closer to the modern instrumental rationale”).
See, e.g., Elwell v. United States, 275 F. 775, 779 (7th Cir. 1921) (noting that the following exchange occurred between an editor and the grand jury over the identity of the author of an article: “Q. Will you tell the grand jury the name of that man? A. I will not. I decline to give the name of the writer of that article, because I feel in honor bound to protect him, because, if newspapers do not protect people who furnish them news, it would be impossible for them to get news.”).
A Case of Press Privilege, Russell Harrison’s Paper Wins Against Judge McHatton, Kalamazoo Gazette, Aug. 12, 1891, at 8. Observers sometimes interpreted decisions that turned on the materiality of a source’s identity as granting an express privilege. From an instrumental perspective, this perception matters. If the public believes the privilege exists, the instrumental benefits of a privilege are enjoyed, even if such privilege does not exist in the law. Of course, this also raises the question of the accuracy and reliability of news reports about reporter’s privilege cases. I have tried, where possible, to cross-reference reports about a case across various outlets and with other historical sources to verify their accuracy. But it is possible that there are some inaccuracies in the news reports cited in this Article. See discussion supra Section II.A.1.a (discussing the limitations of relying on newspapers as a source of legal history).
Charles F. Jones’ Bail Reduced, Chi. Daily Trib., Dec. 4, 1884; The Contumacious Reporters Sustained, Phila. Times, Dec. 5, 1884; The Lane Murder. Dorchester’s Tragedy of Twelve Years Ago. Alleged Confession of the Murderer in a Western Jail. The Matter Before the Suffolk County Grand Jury, Bos. Daily Globe, Nov. 30, 1884.
The Contumacious Reporters Sustained, supra note 225. Some judges ruled differently on this question, holding that a grand jury was empowered to subpoena a reporter for his source of information about the grand jury proceedings themselves, rather than about the underlying crime that the grand jury was empaneled to investigate. See, e.g., In re Grunow, 85 A. 1011, 1012 (N.J. 1913) (articulating a broad view of a grand jury’s power to subpoena witnesses).
514 U.S. at 361 (Thomas, J., concurring). Constitutional protections for anonymous speech are also intertwined with reporter’s privilege claims. Most recently, one scholar has argued that the privilege should be reconceptualized as the right of a source to speak anonymously, rather than the right of a reporter to protect the source’s identity. See Jones, supra note 21.
The court fined Sheldon one hundred dollars for writing contemptuous articles, which he refused to pay. The court then ordered him to jail. The city was outraged. A public dinner was arranged at the jail in his honor. Nearly three hundred people attended, at a time when Detroit had only 2,200 residents. According to a history of the state of Michigan, “[t]he meeting was both serious and hilarious. Songs, toasts, and speeches were the order of the day, and the old jail rang and rang again with the cheers of the gathered throng. The first toast, for John P. Sheldon, was offered by Major Kearsley; the second, ‘The Press,’ by D. C. McKinstry; and the third, ‘Liberty of speech and of the press guaranteed to every citizen by our laws and constitution—a jury must decide on the abuse of either,’ was offered by John Farmer.” Silas Farmer, The History of Detroit and Michigan or The Metropolis Illustrated: A Chronological Cyclopædia of the Past and Present 672 (2d. ed. 1889).
Claims of privilege arose in the course of congressional investigations at this time. See infra Section II.B. But the courts seem to have addressed few privilege claims. One explanation for the dearth of case law on this issue is that there were relatively few reported cases in this era overall. Another is that efforts to identify the source or author of an article during this era arose most often in the course of libel charges. A publisher was equally liable for any libel, obviating the need to ascertain the identity of an author or the source in order to win a libel claim. See, e.g., Pugh v. Starbuck, 1 Ohio Dec. Reprint 143, 145-46 (Super. Ct. Cincinnati 1845); Dexter v. Spear, 7 F. Cas. 624, 625 (C.C.D.R.I. 1825) (No. 3,867).
N.R. Kleinfield, 150th Anniversary: 1851-2001; Investigative Reporting Was Young Then, N.Y. Times (Nov. 14, 2001), http://www.nytimes.com/2001/11/14/news/150th-anniversary-1851 -2001-investigative-reporting-was-young-then.html [http://perma.cc/8CQC-UDU8].
Robert C. Kennedy, On This Day: August 19, 1871, N.Y. Times (Aug. 19, 2001), http://www.nytimes.com/learning/general/onthisday/harp/0819.html [http://perma.cc/4PAB-L553]. In the summer of 1871, one of Tweed’s subordinates approached George Jones, the co-founder and publisher of the New York Times. The man offered Jones $5 million (the equivalent of nearly $100 million today) if the Times would stop exposing Tweed’s corruption. “Why, with that sum, you can go to Europe and live like a prince,” the man reportedly said to Jones. “Yes, but I should know that I was a rascal,” Jones replied. David W. Dunlap, A Happy 200th to The Times’s First Publisher, Whom Boss Tweed Couldn’t Buy or Kill, N.Y. Times: City Room (Aug. 16, 2011, 1:06 PM), http://cityroom.blogs.nytimes.com/2011/08/16/a-happy-200th-to-the -timess-first-publisher-whom-boss-tweed-couldnt-buy-or-kill [http://perma.cc/3FHK -MJYH].
Pete Hamill, ‘Boss Tweed’: The Fellowship of the Ring, N.Y. Times (Mar. 27, 2005), http://www.nytimes.com/2005/03/27/books/review/boss-tweed-the-fellowship-of-the-ring.html [http://perma.cc/7NYS-8UVA].
See Harboring Bad Characters, N.Y. Trib., November 28, 1871, http://chroniclingamerica.loc.gov/lccn/sn83030214/1871-11-28/ed-1/seq-4.pdf [http://perma.cc/7VV2-N2YJ]. The Tribune argued that Jones’s refusal served as evidence that the Times was protecting the Tammany Hall mayor. Id.; see also The Other Side. Some Necessary but Hard Lessons for Mr. Greeley—Candid Opinions of the Independent Press About the New York Tribune, N.Y. Times, Nov. 22, 1871, at 5. The Tribune reported that during Jones’s grand jury testimony, Jones whitewashed the corrupt mayor and became so agitated by the questioning that he nearly threw an inkstand at one of the members of the jury and calmed down only after a pail of water was dumped over his head. The Mayor’s Case. The Jones Inquest, N.Y. Trib., Nov. 21, 1871, at 1.
Personal Liberty, N.Y. Trib., Oct. 29, 1873, at 4. The Times criticized the Tribune’s hypocrisy by republishing the Tribune’s 1872 column criticizing the reporter’s privilege alongside the Tribune’s 1873 column defending the privilege. Journalistic Responsibility, supra note 252, at 4. The Times noted that the contrast allowed for a “better understanding of [the Tribune’s] present humiliating position,” and that the Times would “leave our readers to draw their own conclusions.” Id.
Some of these cases do not fit neatly into a single category. For example, in January of 1921, two editors who refused to reveal their sources were jailed “for a few minutes,” and then released. Editor Jailed for His Silence, New Castle Herald, Jan. 28, 1921, at 11. Other privilege cases of this era fell somewhere between the right to invoke a reporter’s privilege and the right to publish anonymously. For example, in April of 1894, the editorial team of the New Haven Register was summoned before a judge “to show cause why they should not be held for contempt for inaccurately reporting the proceedings in a recent murder trial.” Reporters in Trouble, Columbian (Bloomsburg, Pa.), Apr. 27, 1894, at 1. The editors refused to reveal who wrote the story, and the judge, frustrated, temporarily dismissed the case.
The Grand Jury at Work: A New Orleans Reporter Refuses To Tell What He Knows, Salt Lake Trib., Apr. 11, 1891, at 1. To provide another example from this era, in 1879, a reporter with the St. Louis Globe-Democrat was initially jailed for refusing to reveal who had leaked the contents of secret grand jury proceedings. The judge soon relented. After confirming that the source was not a member of the grand jury, he allowed the reporter to be released. St. Louis Items, Daily Commonwealth (Topeka, Kan.), Feb. 1, 1879, at 1 (“Morris Renshaw, the Globe-Democrat reporter who was sent to jail some days ago for contempt of court in refusing to answer certain questions of the Grand Jury, was before that body again to-day, and in reply to a question asking if he obtained the information he published from any member of the grand jury, he answered No, whereupon he was discharged, and is now breathing the air of freedom.”).
Reporter Would Not Tell: Grand Jury Could Not “Pump Him” and Let Him Go, Fourth Est. (New York), Oct. 22, 1896, at 3 (noting that the grand jury “made a desperate effort to make [the reporter] reveal how and from whom he has been getting inside information about the business of the grand jury,” but that the reporter refused, “saying that the matter came to him in his professional capacity and was what might be termed a privileged communication,” and that “[a]fter trying for some time to ‘pump’ him, with no success, he was allowed to depart”).
The attorney conducting the investigation “several times characterized the witness’[s] silence as ‘contempt’ and intimated that there might be serious consequences if refusal to testify was persisted in.” The editor “replied that the ethics of journalism did not permit him to reveal his sources of information.” The county controller overseeing the proceedings excused the editor without punishment. The Almshouse Probe: Investigation Being Continued in the County Controller’s Office After the Manner of the Grand Jury, Reading Times, Apr. 18, 1905, at 3.
Id. at 455. There are other examples of a judge expressing sympathy for a reporter’s position. In one case, a judge ordered two reporters jailed for contempt for refusing to disclose the identity of a source. But he did so with the following lament: “It is unfortunate to see two young men such as you are with splendid records go to jail, but if you feel you are fighting for a cause and upholding your code of honor, that is for you to determine. The law leaves nothing else for me to do.” Id. at 258.
For example, in May 1969 a judge in Kansas ruled that three reporters were not required to reveal their sources, despite the absence of a state statutory shield. Judge Protects Newsmen Status, Daily Indep. J. (San Rafael, Cal.), May 28, 1969, at 28. The author of a PhD thesis on the reporter’s privilege wrote the following year that the District Attorney told the reporters that the judge had been “trying to build a constitutional case for the defendant’s right to information.” Gordon, supra note 23, at 699.
When a witness refuses to respond to a subpoena to hand over documents or testify before Congress, the legislative body can rely on its inherent powers to punish a nonmember for contempt. Anderson v. Dunn, 19 U.S. 204, 229 (1821). Congress may either take the individual directly into custody, certify the contempt to the U.S. Attorney, or seek a civil judgment from a federal court stating that the individual has a legal obligation to comply with a congressional subpoena. Michael A. Zuckerman, The Court of Congressional Contempt, 25 J.L. & Pol. 41, 42 (2009); Todd Garvey, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, Cong. Res. Serv. 1 (May 12, 2017), http://fas.org/sgp/crs/misc/RL34097.pdf [http://perma.cc/K3C8-FSZQ]. Congress has not exercised its inherent powers of contempt since 1935. Garvey, supra, at 12. But when it certifies the contempt to the U.S. Attorney, the Executive then has the discretion to determine whether to prosecute. United States v. Nixon, 418 U.S. 683, 693 (1974) (noting that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”).
For this reason, this Section focuses on these disputes at the federal level. But controversies over the scope and existence of the privilege flared in state legislative bodies across the country over many decades. State legislatures, like Congress, often permitted reporters to protect their sources. See, e.g., Bribery Investigation Stirs Hooker Session, N.Y. Times, July 13, 1905 (reporting that a journalist was released without consequences after refusing to reveal his source to the New York legislature); Gordon, supra note 23, at 551 (reporting that a journalist was permitted to withhold the identify of a source in an impeachment trial of a state corporation commissioner).
2 Abridgment of the Debates of Congress, from 1789 to 1856, at 416 (Thomas Hart Benton ed., N.Y., D. Appleton & Co. 1857). This same senator argued that the text of the bill should never have been made secret in the first place, declaring:
You are to inquire how [the editor of the Aurora] became possessed of a certain bill which he published; what kind of an inquiry is this? How he procured the sight of a bill, while it was pending in Senate. Why, is there any crime in printing a minute of our transactions?
Id.
36 Annals of Cong. 1694-95 (1820). The publishers explicitly linked their efforts to protect the author’s identity with individual rights. To reveal the author’s identity in the face of congressional pressure, they argued, would lead to “a labyrinth of doctrines, dangerous in the extreme to the rights of the citizen.” Id. at 1698.
Cong. Globe, 31st Cong., 1st Sess. 1693 (1850) (statement of Rep. Fitch) (responding to the claim that an editor must reveal his correspondents by noting that “a priest is not compelled to betray the secrets of the confessional, nor a physician the ailment of his patient”). Not all such efforts succeeded. In 1857, the House of Representatives imprisoned New York Times reporter James Simonton for refusing to reveal a source. They released him after nineteen days out of the belief that Simonton would never reveal the identity of his informant. See Whalen, supra note 23, at 20-21; Opinion, Judith Miller Goes to Jail, N.Y. Times, July 7, 2005, at A22; News of the Day, N.Y. Times, Feb. 10, 1857, at 4. But the controversy led Congress to enact a statute expanding its powers to punish witnesses who refused to testify. This, in turn, led to a fierce public debate over whether Congress had enacted the statute specifically to silence the press. See The New Law of the Press, N.Y. Times, Jan. 24, 1857 (arguing that the “ostensible purpose of this bill is to favor the ends of justice,” but that one “must be particularly blind who does not see that its real design is to cripple and muzzle the Public Press”). It also led some papers to argue that Simonton’s imprisonment implicated the First Amendment. This is surprising, given that the articles were written in an era when the First Amendment was widely viewed as serving only as a limit against prior restraint. See, e.g., Patterson v. Colorado ex rel. Att’y Gen., 205 U.S. 454, 462 (1907). These constitutional arguments were also raised a full century before Marie Torre would argue that the First Amendment protected her right to shield a source. See Gregg, supra note 23, at 384 (quoting the Alexandria Gazette and Virginia Advertiser as quoting the Richmond Examiner, which argued that Congress’s action “is a gross and palpable violation of the Constitution, in so far as it is intended to, and shall in practice, be enforced upon those connected with the press” (emphasis omitted)).
See, e.g., Nugent v. Beale, 1 Hay & Haz. 287, 291 (C.C.D.D.C. 1848). Another notable privilege dispute in 1871 led to the jailing of two reporters, but it also sparked a broader debate over the roles and responsibilities of the press. The New York Tribune published a copy of a secret treaty then under consideration in the Senate. Two reporters for the paper refused to reveal their source on grounds of “professional honor.” They were found in contempt and committed to the sergeant at arms until the end of the legislative session. This led some members of Congress to argue that the text should not have been secret in the first place. Whalen, supra note 23, at 22. It also prompted the Tribune to argue that “[i]f the government can’t keep its own secrets, we do not propose to undertake for it the contract.” Id. at 24.
From 1789 to 1795, the Senate conducted all legislative debates behind closed doors. Beginning in 1795, it opened up many of these proceedings to the public, but it continued to hold “executive sessions” in secret for nearly a century and a half longer. Executive sessions included any session in which the Senate debated “issues and other business received from the president,” including providing advice and consent to treaties and confirming presidential nominees. The Senate in Executive Session, U.S. Senate, http://www.senate.gov/artandhistory /history/common/generic/Feature_Homepage_ExecutiveSessions.htm [http://perma.cc/5QK7-FFWR]. Notes from these secret proceedings were invariably leaked to the press, inciting a number of disputes over a reporter’s ability to maintain the confidentiality of his source of information about the sessions. Many high-profile controversies in Congress over the reporter’s privilege occurred when the Senate attempted to press a reporter to reveal his source of information about a secret executive session. It was this fact pattern that precipitated the arrest of reporter William Duane in 1800; New York Herald reporter John Nugent in 1848; and New York Tribune reporters Zebulon White and Hiram Ramsdell in 1871, among others. See Robert C. Byrd, The Senate 1789-1989: Addresses on the History of the United States Senate 439 (1991) (describing examples of reporters being questioned about their source of information from a closed executive session).
In December 1931, a Washington Post reporter was allowed to protect a confidential source before a House subcommittee investigation. Gordon, supra note 23, at 535-36. In 1943, two reporters with the Akron Beacon-Journal were permitted to protect a confidential source after a House subcommittee acknowledged “the customary practice of newspapers in not revealing the source of such stories.” Id. at 640-41. And in 1945, when a House subcommittee voted to hold a reporter in contempt for refusing to reveal a source, some objected. Associated Press, House Group Holds Reporter in Contempt; He Refused To Name Veterans’ News Sources, N.Y. Times, May 19, 1945, at 8. In the course of that 1945 dispute, one congressional representative argued that the press merited a testimonial privilege similar to that granted to doctors and lawyers,and that to “compel a member of the newspaper profession to expose the source of his information would, in many cases, revolt against the public good.” 91 Cong. Rec. 4859 (daily ed. May 22, 1945) (statement of Rep. O’Toole). A few days later, the committee rescinded the contempt charge. Reporter Cleared in Contempt Case, N.Y. Times, May 29, 1945, at 17.
Of course, such discretion can extend even further to protect the sources themselves. For example, a Government Accountability Office audit reviewed sixty-eight Department of Defense leak investigations between 1975 and 1982. It found that “[i]n no case was there any indication that an individual was removed from a position of trust.” Pozen, supra note 11, at 541 (citing U.S. Gen. Accounting Office, GAO/GGD-83-15, Review of the Department of Defense Investigation of Leak of Classified Information to the Washington Post 5 (1982)). Internal, administrative sanctions are rarely used to punish suspected leakers or to deter future leakers. Id. at 558.
For a comprehensive examination of the many reasons why the executive branch declines to prosecute leakers, see id. at 516. The press may also take measures to increase the political costs of issuing or enforcing a subpoena. For example, Carl Bernstein has said that when he received a subpoena in a civil suit brought by the Nixon reelection committee against the Democratic National Committee, he transferred all of his notes to the custody of Katherine Graham, the Washington Post’s publisher, so that “if anybody was going to go to jail, she was going to go also. As [Editor Ben] Bradlee said: ‘Wouldn’t that be something? Every photographer in town would be down at the courthouse to look at our girl going off to the slam.’” Interview: Carl Bernstein, Frontline (July 10, 2006), http://www.pbs.org/wgbh/pages/frontline/newswar/interviews/bernstein.html [http://perma.cc/CR3B-RM4Q]. Bernstein explained that the government then “backed off . . . . They didn’t want to take on Katherine Graham.” Id.
This was the case with the government’s decision not to compel New York Times reporter’s James Risen’s testimony even after securing a favorable appellate court decision. See United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013); Sari Horwitz, Justice Department Won’t Compel Times Reporter Risen To Reveal Source in Leak Case, Wash. Post (Dec. 12, 2014), http://www.washingtonpost.com/world/national-security/attorney-general-revokes-initial -approval-of-subpoena-for-cbs-journalist/2014/12/12/2aa11c5c-823a-11e4-81fd -8c4814dfa9d7_story.html [http://perma.cc/E5CD-ZUKJ].
Id. Indeed, some evidence suggests that the number of subpoenas issued to journalists had fallen around the time of Branzburg. See Pozen, supra note 11, at 538 (“All evidence suggests that this policy substantially depresses the number of subpoenas issued, and that the lack of access to journalists’ records and testimony makes it substantially more difficult to identify and build cases against leakers.”).
Id. at 473; see also Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 899 (1986) (setting forth the equilibrium theory of justice, which postulates that a competitive but undefined relationship between the press and government “ensures that if both follow their self-interest, the resulting system will work, as if by an invisible hand, to benefit the public as a whole”).
Jennifer K. Elsea, Cong. Research Serv., R41404, Criminal Prohibitions on the Publication of Classified Defense Information 16 (2013). Members of the Bush administration mentioned the possibility of prosecuting the New York Times for disclosing the Terrorist Surveillance Program in 2005, but they never seriously considered such prosecution a viable option. Jack Goldsmith, Extraordinary U.S. Press Freedom To Report Classified Information, Lawfare (Dec. 2, 2013, 8:05 AM), http://www.lawfareblog.com/extraordinary-us-press-freedom-report-classified-information [http://perma.cc/K2FW-XLLE]. It appears the closest the government has come to prosecuting the press for publishing classified information was in 1942, when the Chicago Tribune published information that had the potential to alert Japan to the fact that the United States had broken its secret codes. Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 Harv. L. & Pol’y Rev. 185, 197 n.38 (2007).
For discussions of the overlapping patchwork of statutes that protect against the disclosure of classified information, see Elsea, supra note 320, at 26-30; and Stephen I. Vladeck, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harv. L. & Pol’y Rev. 219 (2007). Vladeck notes that “there are numerous statutes under which the press may find itself liable for the gathering and reporting of stories implicating governmental secrecy.” Vladeck, supra, at 221. These include 18 U.S.C. § 798(a) (2012), which relates to cryptography and communication intelligence and provides that “[w]hoever knowingly and willfully . . . publishes . . . in any manner prejudicial to the safety or interest of the United States . . . any classified information . . . concerning the communication intelligence activities of the Unites States . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.”
In Pentagon Papers, Justice White suggested that reporters could be prosecuted for publishing classified information, and a majority of the Justices seemed to agree. N.Y. Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 733 (1971) (White, Stewart, J. concurring) (noting that “terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do”); id. at 745-57 (Marshall, J., concurring) (noting that Justice White’s interpretation of the application of the Espionage Act to the press was valid); id. at 752 (Burger, C.J., dissenting) (noting that he was “in general agreement with much of what Mr. Justice White has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense”); id. at 759 (Harlan, J., dissenting) (noting, in a dissent joined by Chief Justice Burger and Justice Blackmun, that he was in “substantial accord” with Justice White’s opinion). But the Court has subsequently emphasized that any penal sanction imposed on the press for publishing truthful information that was lawfully obtained “requires the highest form of state interest to sustain its validity.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979). Other subsequent cases emphasizing the importance of press immunity include Bartnicki v. Vopper, 532 U.S. 514 (2001), and Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978). The Court has held that there are strong First Amendment protections for the publication of truthful information lawfully obtained by the press. See Bartnicki, 532 U.S. at 515; Daily Mail, 443 U.S. at 103. This holds true even when the party that provides the information to the press obtained that information by unlawful means. Bartnicki, 532 U.S. at 540. The Court has not addressed whether the same protections apply when the publisher itself has acquired information unlawfully. Cf. Fla. Star v. B.J.F, 491 U.S. 524, 534 (1989) (“[T]he Daily Mail formulation only protects the publication of information which a newspaper has ‘lawfully obtain[ed],’” (quoting Daily Mail, 443 U.S. at 103)). A separate, related question is whether constitutional protection differs in the context of the act of publishing classified information versus the act of soliciting it. For a discussion of this issue, see generally Vladeck, supra note 321. The Court has also yet to squarely address this question. Goldsmith, supra note 320.
RonNell Anderson Jones and Lisa Grow Sun have argued that while every presidential administration criticizes the press, the executive branch has rarely engaged in statements and actions intended to undermine the very legitimacy of the press as an institution. They characterize such efforts as “enemy construction” of the press, and argue that it should be distinguished with more traditional tensions between the executive and the press. See RonNell Anderson Jones & Lisa Grow Sun, Enemy Construction and the Press, 49 Ariz. St. L.J. 1301 (2018).
Pozen, supra note 11, at 549. However, President Trump has proved far more willing than past presidents have been to deny access to reporters or outlets based on the content of their coverage. See, e.g., Callum Borchers, White House Blocks CNN, New York Times from Press Briefing Hours After Trump Slams Media, Wash. Post (Feb. 24, 2017), http://www.washingtonpost.com/news/the-fix/wp/2017/02/24/white-house-blocks-cnn-new-york-times-from-press -briefing-hours-after-trump-slams-media [http://perma.cc/W3FA-WCXP].
See, e.g., John Cassidy, Bob Woodward Throws an Interception, New Yorker (Feb. 28, 2013), http://www.newyorker.com/news/john-cassidy/bob-woodward-throws-an-interception [http://perma.cc/QE76-A94V] (noting that “[e]ver since he and Carl Bernstein shot to fame with their Watergate reporting, he’s been trooping in and out of the offices of senior officials, writing down (and presumably taping) what they say”).
When an agency believes confidential information has been leaked, its members may submit a crime report to the Department of Justice (DOJ), which will then decide whether to open an investigation. Id. at 537-38. In 2000, Attorney General Janet Reno reported that the “overwhelming majority” of such referrals came from the CIA and NSA. Id. at 537. The DOJ reported that it received about fifty such referrals per year in the 1990s and thirty-seven per year on average from 2005-2009. Id. The Department opens an investigation into roughly fifteen percent of these referrals on average. Id. at 538. The FBI also has the authority to pursue leakers but rarely invokes it. Id. at 537.
The broader ecosystem surrounding leaks and the substantial slack in this system offers the government a wide variety of benefits. See Pozen, supra note 11, at 513 (arguing that few leakers are prosecuted as part of an adaptive response to external liabilities and internal pathologies). These two ecosystems—those surrounding leakers and the reporters who publish these leaks—are intertwined. But they are nonetheless distinct; for example, there are ways to pursue leakers without pursuing reporters, such as using new technological methods to identify a confidential source solely through an electronic record of their interactions. As a result, shifting the ecosystem around leakers to more aggressively pursue government officials who reveal confidential information may not necessarily increase the pressure on reporters.
For example, in 2005 the United States Attorney for the Southern District of Texas argued before Congress that the primary drawback of a statutory shield is that it would eliminate prosecutors’ ability to override the guidelines. He testified that the law would harm national security because it would “impose[] inflexible, mandatory standards in lieu of existing, voluntary guidelines that can be adapted to changing circumstances.” Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 111 (2005) (statement of Chuck Rosenberg, U.S. Attorney for the Southern District of Texas).
Id. When the government offers immunity, the reporter is no longer excused from testifying on Fifth Amendment grounds. Peter Scheer, Take the Fifth, Slate (July 6, 2006, 6:58 AM), http://www.slate.com/articles/news_and_politics/jurisprudence/2006/07/take_the_fifth.html [http://perma.cc/939J-JNBJ].
Latara Appleby, Judge Rules Reporter Can Claim Fifth Amendment and Keep Source Secret, Reps. Committee for Freedom of the Press (Nov. 26, 2013), http://www.rcfp.org/browse -media-law-resources/news/judge-rules-reporter-can-claim-fifth-amendment-and-keep -source-secre [http://perma.cc/H4X2-JUFL].
Kimberly Chow, Taking the Fifth To Protect a Source, 39 News Media & L. 60 (2015), http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law -summer-2015/taking-fifth-protect-source [http://perma.cc/B95U-24LR]. Reporters and their lawyers may consider other forms of protection as well. See, e.g., Susan Webber Wright, A Trial Judge’s Ruminations on the Reporter’s Privilege, 29 U. Ark. Little Rock L. Rev. 103, 116 (2006) (arguing that judges who want to avoid reaching the question of a constitutional privilege might be willing to provide protection under evidentiary rules and reminding reporters to “[k]eep in mind that federal judges have discretion under the rules of evidence with respect to the evidence”).
James J. Mangan, Contempt for the Fourth Estate: No Reporter’s Privilege Before a Congressional Investigation, 83 Geo. L.J. 129, 146 (1994) (“Congress historically has failed to vote for contempt proceedings against a reporter who asserts such a privilege.”). In 1992, an attorney investigating leaks surrounding Justice Clarence Thomas’s Supreme Court nomination hearings urged the Senate to hold NPR legal correspondent Nina Totenberg in contempt for declining to answer legislators’ questions. The Senate refused, and the Chairman of the Rules Committee explained that such an action “could have a chilling effect on the media” and “close a door where more doors need opening.” Id. at 129-30 (quoting Editorial, Misguided Business; Senate Committee Decides To Quit Abusing Reporters, Hous. Chron., Mar. 27, 1992, at B10).
By declining to prosecute all leakers, for example, the executive branch preserves its ability to effectively communicate information through intentional leaks, or “plants.” Id. at 563-64. Pozen outlines additional benefits as well, such as enhancing the government’s legitimacy and credibility by signaling to the public that despite the official secrecy measures in place, the public will eventually be permitted access to the government’s internal decisions and inner workings. Id. at 573-77. Another benefit to this strategy is that it avoids addressing the difficult problem of overclassification head-on. Id. at 582.
See, e.g., United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) cert. denied, 134 S.Ct. 2696 (2014); Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005), cert. denied, 547 U.S. 1187 (2006); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005), cert. denied, 545 U.S. 1150 (2005); von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987), cert denied, 481 U.S. 1015 (1987).
See McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (“Some of the cases that recognize the privilege, such as [In re] Madden, essentially ignore Branzburg; some treat the ‘majority’ opinion in Branzburg as actually just a plurality opinion, such as [United States v.] Smith; some audaciously declare that Branzburg actually created a reporter’s privilege, such as [Shoen v.] Shoen and von Bulow v. von Bulow.” (internal citations omitted)).
This is not the only area of the law where the press is less likely to find protection from the courts. For a discussion of other areas of law where the courts are less likely to protect the press, including privacy and defamation law, see RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567 (2017).
Dennis J. Drasco, Am. Bar Ass’n, House of Delegates, Recommendation 104B, at 5 (2005), http://www.americanbar.org/content/dam/aba/migrated/litigation/standards/docs/fslr_report.authcheckdam.pdf [http://perma.cc/3QVJ-ZPQB].
See, e.g., Pozen, supra note 11, at 526 (noting that Judge Posner’s decision in McKevitt “appears to have anticipated a swing in the doctrinal pendulum back toward the more restrictive view”). For a discussion of the impact of Judge Posner’s decision on other lower courts, see Dalglish & Murray, supra note 114, at 37.
In re Special Proceedings, 373 F.3d 37, 44 (1st Cir. 2004) (citation omitted). The case involved a reporter’s refusal to identify his source in the context of an investigation by a special prosecutor into video footage leaked in violation of a protective order. The court noted that while “[t]he three leading cases in this circuit require ‘heightened sensitivity’ to First Amendment concerns and invite a ‘balancing’ of considerations (at least in situations distinct from Branzburg),” those cases “in substance” suggest only that “the disclosure of a reporter’s confidential sources may not be compelled unless directly relevant to a nonfrivolous claim or inquiry undertaken in good faith; and disclosure may be denied where the same information is readily available from a less sensitive source.” Id. at 45. The court held that these constraints had been satisfied in the present case. Id.
Lee v. Dep’t of Justice, 428 F.3d 299, 301 (D.C. Cir. 2005) (Tatel, J., dissenting from denial of rehearing en banc). Judge Tatel criticized the court for departing from its precedent in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981), which required the court to balance the public and private interests at stake when considering a reporter’s privilege claim in the civil context. Id. Also in a dissent from the denial of rehearing en banc, Judge Garland argued that the court’s approach in Lee was “inconsistent with the commitment we made in Zerilli.” Id. at 303 (Garland, J., dissenting from denial of rehearing en banc).
Id. at 1148 (“Justice White’s opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is the opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.”).
One explanation for the judiciary’s more hostile treatment of reporter’s privilege claims is that these disputes increasingly involve classified information, and judges are less likely to protect the press when national security interests are involved. If so, this trend could be viewed as a gap in the de facto privilege, which would seem to lend weight to the argument in favor of formalization: a formal shield could theoretically help close this gap. However, many national security reporters have opposed recently-proposed shield laws on the grounds that they provide insufficient protection. See, e.g., Eric Newton, Paying Attention to the Shield Law’s Critics, Colum. Journalism Rev. (Sept. 24, 2013), http://archives.cjr.org/behind_the_news/paying_more_attention_to_the_s.php [http://perma.cc/7WUR-MQWS] (quoting investigative journalist Scott Armstrong as arguing that “[t]here’s not a national security reporter I can find who supports the shield law . . . . We’re going to get exempted out of it one way or another”). For a discussion of the national security exemption in the 2013 Free Flow of Information Act, see generally Brad A. Greenberg, The Federal Media Shield Folly, 91 Wash. U. L. Rev. 437 (2013). For further discussion of how the de facto privilege applies in the context of national security disputes, see supra note 175.
Judges may have been more willing to jail reporters for longer around the time of Branzburg. See, e.g., State v. Knops, 183 N.W.2d 93, 93 (Wis. 1971) (noting that a Wisconsin district court judge ordered a university newspaper editor to serve five months and seven days in prison for his refusal to reveal his source of information about a university bombing—the longest known sentence for a reporter at the time). But reports of members of the press receiving very long jail sentences were rare in the period between the late 1970s and September 2001.
Ken Paulson, The Real Cost of Fining a Reporter, USA Today (Mar. 12, 2008), http:// usatoday30.usatoday.com/printedition/news/20080312/opcomwednesday.art.htm [http://perma.cc/Y8HS-MRKB].
Samantha Fredrickson, Nearly in the Clear?, News Media & L. (2009), http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-winter-2009/nearly -clear [http://perma.cc/YD3M-U6NC]. The order was vacated when the case settled.
For example, when editor John Sheldon was fined $100 in 1829, it caused a public uproar. See supra note 246. That amount appears to equal, very roughly, around $2,300 today. See Consumer Price Index (Estimate) 1800-, Fed. Res. Bank Minn., http://www.minneapolisfed.org/community/teaching-aids/cpi-calculator-information/consumer-price-index-1800 [http://perma.cc/7E5H-JDEA].
David Carr, Subpoenas and the Press, N.Y. Times (Nov. 27, 2006), http://www.nytimes.com/2006/11/27/ business/media/27carr.html [http://perma.cc/D6DR-LAV9].
Anna Stolley Persky, 50 Years After New York Times v. Sullivan, Do Courts Still Value Journalists’ Watchdog Role?, ABA J. (Mar. 2014), http://www.abajournal.com/magazine/article/50_years_after_new_york_times_v._sullivan_do_courts_still_value_journalists [http://perma.cc/WZM6-WU9M].
Structural changes within the executive branch may have contributed to an increase in the number of subpoenas issued to reporters. The creation of the National Security Division (NSD) of the DOJ in 2006 altered the process for referring and investigating alleged leaks. Pozen, supra note 11, at 537. The NSD now coordinates these investigations and prosecutions with the FBI, and this restructuring may have brought “additional resources or a more aggressive mindset to the Department of Justice’s work on leak matters.” Id. at 630. The establishment of the Office of the Director of National Intelligence in the mid-2000s to coordinate the work of the CIA, NSA, and other actors within the intelligence community may have also contributed to a more aggressive mindset with regards to leaks. Id. at 590 n.361, 630 n.532.
Id. at 4. The 2013 Senate Judiciary report also argued that the DOJ figures did not take into account incidents like the secret subpoenas obtained in 2013 for two months of all Associated Press call records, which affected an estimated one hundred reporters around the country. Id. at 5. One scholar has argued that this numerical discrepancy arose out of differences in how both sides were defining the universe of relevant subpoenas. Jones, supra note 114, at 609.
Charlie Savage & Eileen Sullivan, Leak Investigations Triple Under Trump, Sessions Says, N.Y. Times (Aug. 4, 2017), http://www.nytimes.com/2017/08/04/us/politics/jeff-sessions-trump-leaks-attorney-general.html [http://perma.cc/K4N9-5Y47].
See Sarah Ellison, What Was New York Times Reporter James Risen’s Seven-Year Legal Battle Really For?, Vanity Fair (Apr. 2015), http://www.vanityfair.com/news/2015/03/james-risen -anonymous-source-government-battle [http://perma.cc/DV6D-BTM7]; Sources and Subpoenas (Reporter’s Privilege), Reps. Committee for Freedom of the Press, http://www.rcfp.org/digital-journalists-legal-guide/sources-and-subpoenas-reporters-privilege [http://perma.cc/J9Z8-AGN3].
Scott Shane, Increase in the Number of Documents Classified by the Government, N.Y. Times (July 3, 2005), http://www.nytimes.com/2005/07/03/politics/increase-in-the-number-of -documents-classified-by-the-government.html [http://perma.cc/99UZ-PBHW]. These high rates of classification began to decrease under the Obama Administration. See Info. Sec. Oversight Office, Nat’l Archives and Records Admin., 2014 Report to the President 2 (2014), http://www.archives.gov/files/isoo/reports/2014-annual-report.pdf [http://perma.cc/YB4R-NSXB].
James Risen, If Donald Trump Targets Journalists, Thank Obama, N.Y. Times (Dec. 30, 2016), http://www.nytimes.com/2016/12/30/opinion/sunday/if-donald-trump-targets-journalists-thank-obama.html [http://perma.cc/LW56-8Q27]. For a discussion of the forces that helped drive this uptick in leak investigations under the Obama administration, see Papandrea, supra note 390, at 455-64.
Savage & Sullivan, supra note 386. Although there is some confusion in how Sessions arrived at this ratio, Sessions was not the only member of the executive branch to take an aggressive stance toward the press. Id. In that same news conference, Director of National Intelligence Dan Coats stated: “Understand this: If you improperly disclose classified information, we will find you, we will investigate you, we will prosecute you to the fullest extent of the law, and you will not be happy with the results.” Id.
Brian Stelter, Jeff Sessions: We’re Investigating 27 Leaks of Classified Information, CNN (Nov. 14, 2017, 2:03 PM), http://money.cnn.com/2017/11/14/media/leak-investigations-jeff-sessions/index.html [http://perma.cc/GBN8-ZLPR].
Matthew Yglesias, The Trump Administration’s Big New Anti-Leak Memo Leaked Last Night, Vox (Sept. 14, 2017, 10:00 AM), http://www.vox.com/policy-and-politics/2017/9/14/16305384/mcmaster-memo-leaks [http://perma.cc/D88L-XV84].
For a summary of the ways that the Trump Administration has denied access to the press, see Jones & West, supra note 354, at 585-89. For a discussion of the ways in which the current administration’s efforts to exclude and demonize the press are uniquely harmful, see Jones & Sun, supra note 324, at 7-20.
See, e.g., Julie Hirschfeld Davis & Michael M. Grynbaum, Trump Intensifies His Attacks on Journalists and Condemns F.B.I. “Leakers,” N.Y. Times (Feb. 24, 2017), http://www.nytimes.com/2017/02/24/us/politics/white-house-sean-spicer-briefing.html [http://perma.cc/B7X3 -XCWL] (reporting that prominent news outlets were barred from a White House press briefing); Donald Trump (@realDonaldTrump), Twitter (Feb. 17, 2017, 1:48 AM), http://twitter.com/realDonaldTrump/status/832708293516632065 [http://perma.cc/52WS-VH2V] (“The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”).
Michael S. Schmidt, Comey Memo Says Trump Asked Him To End Flynn Investigation, N.Y. Times (May 16, 2017), http://www.nytimes.com/2017/05/16/us/politics/james-comey -trump-flynn-russia-investigation.html [http://perma.cc/HN4J-75FV].
Nausicaa Renner, The Symbiotic Relationship Between WikiLeaks and the Press, Colum. Journalism Rev. (Nov. 18, 2016), http://www.cjr.org/tow_center/wikileaks_trump_election_julian_assange.php [http://perma.cc/9EVR-TT9U].
See Pozen, supra note 11, at 631 (describing the various social and technological factors that may have contributed to the Obama Administration’s more aggressive pursuit of leakers, and noting that “[o]n account of such exogenous shocks, the downside of lax enforcement may seem qualitatively scarier now” and may be disrupting the balance between plants—which are beneficial to the government—and leaks, which, generally, are not).
See, e.g., Trump Uses Twitter To Bypass Media, PBS (Dec. 8, 2016), http://www.pbs .org/newshour/extra/daily_videos/trump-uses-twitter-to-bypass-media [http://perma.cc/FSK4-J6ME].
For a discussion of how the decline of the institutional media as a middleman between the government and the public affects the press more broadly, see Jones & West, supra note 354, at 582-84. See also Jones & Sun, supra note 324, at 33 (arguing that the President’s ability to communicate directly with the public “is perhaps the most important factor in opening the door to a president constructing the press as a public enemy”).
See, e.g., Rick Edmonds, Newspaper Declines Accelerate, Latest Pew Research Finds, Other Sectors Healthier, Poynter (June 15, 2016), http://www.poynter.org/2016/newspaper-declines -accelerate-latest-pew-research-finds-other-sectors-healthier/416657 [http://perma.cc/JN3F-V9J6].
See RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 571 (2011) (discussing the financial decline of newspapers and the negative impact that this has on American democracy); Jones & West, supra note 354, at 575, 576-78 (demonstrating how the reduced economic strength of the press has reduced the media’s ability to “take on governmentally created obstacles to newsgathering through manpower, time, and effort”).
See Robert G. Kaiser, The Bad News About the News, Brookings Inst. (Oct. 16, 2016), http://csweb.brookings.edu/content/research/essays/2014/bad-news.html [http://perma.cc/4BW6-XXD7] (describing the power and wealth enjoyed by print and broadcast media in the 1970s).
See, e.g., Sari Horwitz, Feds Have Interviewed More Than 100 People in Two Leak Investigations, Wash. Post (June 15, 2012), http://www.washingtonpost.com/world/national-security/feds-have-interviewed-more-than-100-people-in-two-leak-investigations/2012/06/15/gJQA5u21fV_story.html [http://perma.cc/GV8Z-XGFY] (noting that administration officials had stated the process of investigating leaks has been made easier by “the proliferation of technology, especially email, which allows investigators to track contacts between reporters and alleged leakers”). The government has also turned to other legal tools to identify sources, such as search warrants, warrants issued by the FISA court, and border searches of reporters’ electronic devices. See Ellison, supra note 387; Sources and Subpoenas, Reps. Committee for Freedom of the Press, http://www.rcfp.org/digital-journalists-legal-guide/sources-and -subpoenas-reporters-privilege [http://perma.cc/X3BL-ECZG]. Some have argued that the government relies on these alternative legal and technological tools so heavily as to render the reporter’s privilege issue moot. See, e.g., Elizabeth L. Robinson, Note, Post-Sterling Developments: The Mootness of the Federal Reporter’s Privilege Debate, 95 N.C. L. Rev. 1314, 1315 (2017). I would argue this view underplays the extent to which the government still can and does rely on reporter subpoenas, as well as the threat that these subpoenas and the anticipatory fear of such subpoenas pose to the reporter-source relationship.
News outlets are increasingly relying on encrypted sources of information. The homepage of the New York Times now prominently features a section describing how to securely provide the paper with a news tip, including an encrypted SecureDrop. Got a Confidential News Tip?, N.Y. Times, http://www.nytimes.com/newsgraphics/2016/news-tips [http://perma.cc/8CT7-P94W]. And Human Rights Watch has reported that U.S. reporters are increasingly relying on burner phones and encryption to protect sources. With Liberty To Monitor All: How Large-Scale US Surveillance Is Harming Journalism, Law, and American Democracy, Hum. Rts. Watch (July 28, 2014), http://www.hrw.org/report/2014/07/28/liberty-monitor-all/how -large-scale-us-surveillance-harming-journalism-law-and [http://perma.cc/5CJS-XKVN].
Art Swift, Americans’ Trust in Mass Media Sinks to New Low, Gallup (Sept. 14, 2016), http://http://www.gallup.com/poll/195542/americans-trust-mass-media-sinks-new-low.aspx [http://perma.cc/62Z7-SLMB].
See, e.g., Joel Simon, Trump Is Damaging Press Freedom in the U.S. and Abroad, N.Y. Times (Feb. 25, 2017), http://www.nytimes.com/2017/02/25/opinion/trump-is-damaging -press-freedom-in-the-us-and-abroad.html [http://perma.cc/HVA2-4PRN] (arguing that Trump’s attacks on the press were “part of a deliberate strategy to undermine public confidence and trust” in the institution); Margaret Talbot, Trump and the Truth: The “Lying” Media, New Yorker (Sept. 28, 2016), http://www.newyorker.com/news/news-desk/trump-and -the-truth-the-lying-media [http://perma.cc/U5SY-3BFZ] (noting that Trump referred to the media as “slime” and “lying, disgusting people”).
Declining popularity of the press has been cited as a factor in the executive’s decision to serve more subpoenas. See, e.g., Wright & Graham, supra note 7, § 5426 (arguing that “the political power of the press, which had previously made prosecutors reluctant to try to compel newsmen to disclose sources, was substantially diminished during the Nixon administration,” which may have explained the increase in number of subpoenas issued to reporters during that time). For a further discussion of the drop in public confidence in the press, see Jones & West, supra note 354, at 580-81.
The idea that protection was conferred in fact, if not in law, surfaced repeatedly in the context of legislative debates in the wake of Branzburg. See supra notes 16-18 and accompanying text; see also Newsmen’s Privilege: Hearings on H.R. 717 Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 93d Cong. 295 (1973) (statement by Stanford Smith, President of the American Newspaper Publishers Association) (noting that “[w]e thought we had lived through 200 years of history in this country where the news media were exempt from this type of subp[o]ena”); id. at 395 (statement of Rep. Glenn M. Anderson) (“For nearly 200 years, we rarely challenged the right of the press to investigate and report to the American people. Today that is no longer true.”); Newsmen’s Privilege: Hearings on H.R. 837, H.R 1084, H.R. 15891, H.R. 15972, H.R. 16527, H.R. 16713, and H.R. 16542 Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 92d Cong. 236 (1972) [hereinafter Newsmen’s Privilege I] (statement of Victor S. Navasky, American Civil Liberties Union) (arguing that “journalists, like doctors, lawyers and priests, were able to have a confidential relationship with their client, their source,” and “[w]hat we are asking Congress to do is restore a situation that existed before”); id. at 165 (statement of Rep. William S. Moorhead) (stating that “[a] few years ago it was generally assumed that freedom of the press protected not only the right to publish information but the right to gather information”).
Id. at 27302. Iowa Representative Steve King echoed this view. “[The bill] would protect journalists in most circumstances from having to reveal their sources or produce documents and notes to government,” he stated. “This is not a problem. The press has flourished for over 200 years without a Federal privilege.” Id. at 27308.
It is not always clear from the record whether legislators were arguing that the press has never enjoyed a formal shield or whether they were arguing that the press has never enjoyed any federal protection of any kind. But ultimately, this distinction matters little: the former argument is normatively flawed because the broader ecosystem of less formal protections matters, while the latter argument is factually wrong.
See Timothy L. Alger, Promises Not To Be Kept: The Illusory Newsgatherer’s Privilege in California, 25 Loy. L.A. L. Rev. 155, 172 n.102 (1991); Dalglish & Murray, supra note 114, at 18-19. One reporter described the media’s lobbying efforts for a federal shield law as “convicts building gallows from which they will hang.” Jones, supra note 114, at 603.
See, e.g., Michael Calderone, Media Coalition Endorses Journalist Shield Law, Huffington Post (Sept. 12, 2013), http://www.huffingtonpost.com/michael-calderone/newspaper-association-america-media-shield-law_b_3915192.html [http://perma.cc/Y8C4-T8LH].
Editorial, A Shield Law Is Necessary To Protect U.S. Journalists, Wash. Post (Sept. 22, 2013), http://www.washingtonpost.com/opinions/a-shield-law-is-necessary-to-protect-us -journalists/2013/09/22/a3449104-20af-11e3-966c-9c4293c47ebe_story.html [http://perma.cc/89JR-PQJ9].
Bill Keller, Secrets and Leaks, N.Y. Times (June 2, 2013), http://www.nytimes.com/2013/06/03/opinion/keller-secrets-and-leaks.html [http://perma.cc/TLD4-GSKQ].
See, e.g., Newton, supra note 366. The bill provided that the government could obtain confidential source material from a covered journalist when it could show by a preponderance of the evidence that the information would “materially assist . . . in preventing or mitigating an act of terrorism or other acts that are reasonably likely to cause significant and articulable harm to national security.” See S. Rep. No. 113-118, at 7 (2013). In any other case involving national security, the government could obtain the information if it showed by a preponderance of the evidence that it would “materially assist in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other acts that have caused or are reasonably likely to cause significant and articulable harm to national security.” Id. at 7-8.
Free Flow of Information Act of 2013, S. 987, 113th Cong. § 11(1)(B) (2013) (“In the case of a person that does not fit within the definition of ‘covered journalist’ described in subclause (I) or (II) of paragraph (A)(i), a judge of the United States may exercise discretion to avail the person of the protections of this Act if, based on specific facts contained in the record, the judge determines that such protections would be in the interest of justice and necessary to protect lawful and legitimate news-gathering activities under the specific circumstances of the case.”).
Wright & Graham, supra note 7, § 5426 & n.4 (noting that the legislative history of Rule 501 “read like an invitation to courts to create” a reporter’s privilege and that the chairman of the House subcommittee that drafted the rules stated expressly that “[t]he language of Rule 501 permits the courts to develop a privilege for newspaper-people on a case-by-case basis.”).
The origins of this phrase can be traced back to Wolfle v. United States, 291 U.S. 7, 12 (1934), in which the Court held that federal common law privileges should be subject to revision over time as society evolved and changed; and to Rule 26 of the Federal Rules of Criminal Procedure, adopted in 1944, which provides that “[i]n every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or rules adopted” by statute. Rule 26’s committee notes clarify that the rule permits courts to apply federal common law rules interpreted by the courts “in the light of reason and experience.”
In his concurrence in In re Miller, Judge Tatel relied on much of this history and practice in determining that the courts should create a federal common law privilege under Rule 501. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1172 (D.C. Cir. 2006) (Tatel, J., concurring). He invoked the near-uniformity among the states and the DOJ press subpoena guidelines in support of his argument for a common law privilege. Id.; see also Theodore J. Boutrous, Jr. & Seth M.M. Stodder, Retooling the Federal Common-Law Reporter’s Privilege, Comm. Lawyer, Spring 1999, at 24-25 (arguing that DOJ policy should be factored into the courts’ consideration of whether a privilege is warranted “in light of reason and experience”).
28 C.F.R. § 50.10(i) (2017). In the Judith Miller case, the government’s Special Counselor did not follow the guidelines for issuing subpoenas to reporters. But the court found that this had little relevance to Miller’s case because the guidelines create no enforceable right. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1152 (D.C. Cir. 2006).
The director of the D.C.-based Government Accountability Project, which advocates for whistle-blowers, has called the Obama years the “golden age” for whistle-blower reform. Eyal Press, Obama Leaves Trump a Mixed Legacy on Whistle-Blowers, New Yorker (Dec. 7, 2016), http://www.newyorker.com/news/daily-comment/obama-leaves-trump-a-mixed-legacy -on-whistle-blowers [http://perma.cc/Z2EZ-AWYC]. Major legislative initiatives under Obama, including the Affordable Care Act and the economic stimulus plans, all included strengthened protections for whistleblowers. Id.
See Newton, supra note 366 (quoting Charlie Savage, arguing that moving decisionmaking authority on the issuance of a subpoena from an attorney general’s office to a judge’s chambers “alone is a deterrent to frivolously or overly broad requests and it may in fact have a significant change in how often such a subpoena is issued”).
For a discussion of the difficulties of defining who qualifies for the privilege, see, for example, Eliason, supra note 104, at 1366-70. For a more general discussion of the benefits of preserving ambiguity in the law, see Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 7 (1996) (describing the benefits of “decisional minimalism”).
David Pozen, Why a Media Shield Law May Be a Sieve, Just Sec. (Oct. 21, 2013, 10:20 AM), http://www.justsecurity.org/2232/media-shield-law-sieve-david-pozen [http://perma.cc/K3TY-B49K].