When the U.S. Supreme Court ruled in 1972 that the First Amendment doesn’t protect reporters from testifying before criminal grand juries, Justice Byron White wrote that recognizing such a privilege would create “practical and conceptual difficulties of a high order.”
Even though the court noted in Branzburg v. Hayes that some states had worked through these difficulties, the justices left it to Congress to decide whether to embark upon the task, cautioning:
“Sooner or later, it would be necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as the large metropolitan publisher who utilizes the latest photocomposition methods.”
For many, “sooner or later” had arrived by July 6, when New York Times reporter Judith Miller was taken into federal custody for refusing to testify before a federal grand jury investigating the disclosure of Valerie Plame’s identity as a CIA operative — something Miller never reported. Though the debate surrounding a federal shield law has shifted from carbon paper and mimeographs to blogs and podcasts, during the past year these discussions were rampant on editorial pages and talk shows and within journalism and media law circles.
With several proposals creating a federal shield law in Congress, lawmakers, journalists and law enforcement have questioned who would be cover by these proposals. Increases in blogging and citizen journalism raise concerns about whether law enforcement would be able to function if a broad definition allowed nearly anyone to claim coverage. At the same time, creating too narrow a scope would be detrimental to free press if it resulted in a form of government licensing.
“Politically, that is probably the stickiest part of it,” said 2004-05 SPJ President-Elect David Carlson.
Still, this would not be the first time a law defined journalists and provided them with different treatment from the general public. This year’s Pulliam Kilgore Report considered the various ways that society and the media define journalists. It also examines the ways state shield laws define journalists and the ways the federal courts have applied reporter’s privilege. The following is a condensed portion of the report discussing how some existing federal laws define journalists and the implications for a federal shield law.
It is not unprecedented for the federal government to create laws that treat journalists differently than members of the public – including the Freedom of Information Act and campaign finance legislation. There are also policies and laws affecting newsroom searches and limiting subpoenas issued to the media by the U.S. Department of Justice.
Freedom of Information Act
The Freedom of Information Act provides that “fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research; or a representative of the news media.”
The current standard courts have used to determine if someone is a “representative of the news media” is whether he or she gathers information of potential interest to the public, turns the raw material into a work, and distributes that work to an audience.
Courts have ruled that the National Security Archives, a research institute and library, and Electronic Privacy Information Center, a public interest research center, both fall within the definition of a representative of the news media. In each determination, the court looked to the functions the group performed. In the case of the National Security Archives, the court determined that the group’s work on an upcoming documentary was evidence that it gathered information in the public’s interest, created a distinct product and distributed that product to the public, even though it had published only one book previously.
In the EPIC case, the court refined the earlier test by noting that the center “must disseminate actual ‘news’ to the public, rather than solely self-promoting articles about that organization” so that any group with a membership newsletter could not claim a waiver.
The Freedom of Information Act also provides preferential treatment to the news media by allowing them special status for expediting reviews of requests that are urgent to the public, as long as they concern actual or alleged federal government activity.
To determine whether a request meets these standards, courts more often have questioned the news value of the information — not the qualifications of the person seeking the information.
One of the few cases to directly address this issue of expedited review involved a FOIA request submitted by Harrod’s owner Mohamed Al Fayed, who also owned Punch, a British humor magazine. Al Fayed sought information related to the deaths of his son, Dodi Al Fayed, and Princess Diana following their much-publicized 1997 auto accident.
The court determined that he was not entitled to an expedited review because there was no showing of urgency to inform the public about the events. While the death of the couple several years earlier had been news around the globe, the information Al Fayed requested was not part of any unfolding story. The court also noted that Al Fayed did not show any adverse affects from not receiving an expedited review.
Even though the court described Al Fayed as a magazine publisher, his request for expedited review was declined. However, those not claiming to be journalists have received expedited review from time to time when requesting information that is “a matter of widespread and exceptional media interest” concerning questions about the integrity of the government.
In one case, an FBI contract linguist requested information related to allegations she made about security lapses in the translation program that media — including The Associated Press, The Washington Post and the Chicago Tribune — had covered. In granting her request for an expedited review, the court clarified that the government should not require a showing of adverse consequences in determining whether to grant expedited review. Rather, the court concluded that even though her requests were related to personal accusations, the media attention focused on the allegations and public’s interest in government integrity required an expedited process.
Basing an expedited-review process on the content of the information might work for FOIA requests, but a comparable definition for a federal shield law — one that looked at the newsworthiness or public interest of the protected material — may not be as workable because journalists often do not know the nature of the information they will receive when they agree to grant a source confidentiality.
Additionally, allowing a court to determine if something is newsworthy before granting it protections could place a judge in a position of using hindsight to evaluate earlier journalistic decisions.
The Stanford Daily search and resulting legal reforms
Another law that goes toward defining journalists was put in place after the Supreme Court ruled in 1978 that issuing a search warrant for the newsroom of the Stanford Daily, a student newspaper at Stanford University, was constitutional.
Congress reacted with public support for two substantial protections for a broadly defined class of journalists. The first protection came with the passage of the Privacy Protection Act of 1980, which prevents journalists’ work from being seized unless the governmental entity seeking the information overcomes several burdens. The second protection is a provision within the Privacy Protection Act that required the attorney general to issue guidelines for the Department of Justice to follow when issuing subpoenas to journalists. President Jimmy Carter actively supported the law, saying that newsroom searches “could have a chilling effect on the ability of reporters to develop sources and pursue stories.”
Privacy Protection Act of 1980
The protections against newsroom searches apply to “a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication.” The limitations do not apply to a journalist if there is probable cause to suspect the journalist committed a criminal offense to which his materials relate. Although this exception does not apply to criminalized offenses of receiving, possessing, obtaining or withholding information, the government could still search and seize information if it is classified or relates to national defense, child pornography or atomic energy.
For example, these exceptions might allow the government to seize classified papers or information related to national security that is illegally leaked to a media outlet.
In determining whether law enforcement violated the Privacy Protect Act by seizing evidence, courts must consider whether police should have reasonably believed the person intended to disseminate the product.
In one decision involving a freelance videographer, the court noted he would probably not succeed in a case brought under the Privacy Protection Act because he did nothing to indicate to police that he intended to disseminate news to the public, even though that was his purpose.
The court noted that he did not tell police officers of his intent and that he was not a news station employee. Still, the court ruled in his favor because it was likely that police violated his constitutional rights under the Fourth Amendment against unreasonable searches and seizures by taking the video.
In another case, however, a court applied the protection when police sought a video taken by a tourist, who had no previous journalism experience, who happened to record a homicide while filming scenes in Kansas City. The court applied the law because the tourist sold the tape to a television station a few hours after recording it, and the television station aired portions of the film on the evening news.
In applying these restrictions, something of a discrepancy exists as courts have looked at the purpose of whoever possesses the information when the police seek it and not necessarily at the purpose of the person who gathered the information. This allowed the tourist’s tape, later purchased by a TV station, to be protected. But the statute does not protect the videographer’s tape in the first case even though the factual findings of the case state that he intended to disseminate the information and was unfortunately ineffective at communicating his intent to police.
This definition is useful in that it looks at the purpose of the person who has the information law enforcement is seeking. Having an intent to disseminate information to the public at the time the information is gathered is one of the more successful tests used by courts that have recognized a reporter’s privilege and is often suggested for a means of defining the scope of a federal reporters shield law.
However, courts have applied the Privacy Protection Act by looking at who possessed the information when law enforcement wanted it, an interpretation that could suggest that putting something physically in a newsroom or giving it to an established journalist could shield it from disclosure. Additionally, courts have not interpreted how the Privacy Protection Act would apply to self-published individuals or bloggers who distribute information to the public and how law enforcement should reasonably know their intentions for the material.
Department of Justice guidelines
The Department of Justice also has guidelines about subpoenas it issues to “members of the news media” that then-Attorney General John Mitchell first announced in 1970 during an American Bar Associate meeting. The guidelines, which were published in The New York Times on Aug. 11, 1970 are very similar to the guidelines that currently exist and require that subpoenas can only be issued when a series of burdens is overcome.
The guidelines, however, do not describe who should be considered a member of the news media. Because the guidelines do not provide a private right of action for someone to sue to enforce them, there are no court rulings further defining to whom the policy should apply. Instead, most of the decisions involving the policy are in the context of members of the mainstream media claiming, in challenging a subpoena, that the burdens to issue the subpoena were not met or that the First Amendment warranted a greater protection.
Still, in at least one known instance, the Department of Justice issued a subpoena without following the guidelines.
When freelance author Vanessa Leggett, who was working on a book about murders in Houston, challenged her subpoenas, the court ruled that the burdens to issue the subpoena would have been overcome even if then-Attorney General John Ashcroft had applied the guidelines to the freelance writer. SPJ and the Reporters Committee for Freedom of the Press argued that Leggett should be considered a journalist following the functional tests used in federal courts, and that the guidelines would not have allowed such a broad and speculative demand for information.
Though the media has generally been satisfied by the guidelines, in recent years there has been growing concern that the Department of Justice is not applying the regulations across the board to all journalists and that it is issuing subpoenas without meeting its burdens. Additionally, courts have not required special prosecutors to follow the guidelines even though independent counsels previously had been required to follow the restrictions except for receiving the attorney general’s personal approval. This loophole allows the attorney general to appoint a special prosecutor, who has full investigatory and prosecution powers, to demand information from journalists without regard to the sensitive role of the media recognized by Congress in requiring the guidelines initially.
Federal campaign finance laws
Federal campaign laws require candidates to report contributions they receive and limit the amount of money people and corporations can give to or spend on behalf of a candidate. While media coverage of a candidate likely increases the public’s knowledge of the candidate and could theoretically be considered spending on behalf of a candidate, Congress did not intend the regulations to “limit or burden in any way the first amendment freedoms of the press and of association.”
To ensure that news articles and editorial endorsements were not considered campaign expenditures, the law exempts “any news story, commentary or editorial distributed through the facilities of such broadcasting station, newspaper, magazine or other periodical publication unless such facilities are owned or controlled by any political party, political committee or candidate.”
The Federal Elections Commission, which enforces federal campaign finance laws, held hearings this summer about whether Internet communications, which had been unregulated, should be regulated or placed explicitly within the media exception. The Center for Democracy and Technology urged the FEC to create a “short, easily understandable rule … that will clear the doubts of ordinary individuals who fear they may be running afoul of campaign laws.”
Others worry that giving bloggers the protections of media entities would create a legal loophole for wealthy individuals or corporations to pour money into politics. Carol Darr, the director of the Institute for Politics, Democracy and the Internet, argued that blogs sponsored by corporations could be used as a way for the corporation to exert more influence over the election.
“My concern is not with average citizens who choose to publish a blog and share his or her viewpoints on the internet, but with large corporations and unions who seek to unfairly influence campaigns by spending large amounts of money under the guise of being a blog,” she said.
The media exception has allowed traditional media entities to critique and endorse political candidates freely, something any blog or Web site creator should have the same right to do. While the interest in fair elections persuaded Congress to exclude political parties from media classifications in the context of campaign finance laws, requiring an unbiased intention for a person seeking a reporter’s privilege would obviously be problematic, especially when an opinion columnist sought coverage.
Current proposals in Congress
The Free Flow of Information Act, co-sponsored by Sens. Richard G. Lugar, R-Ind., and Chris Dodd, D-Conn., has garnered the most support of any recent federal shield law.
The current version of the Free Flow of Information Act defines a “covered person” as:
(A) An entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic or other means and that —
(i) publishes a newspaper, book, magazine or other periodical in print or electronic form;
(ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system or carrier;
(iii) operates a news agency or wire service;
(B) a parent, subsidiary or affiliate of such an entity to the extent that such parent, subsidiary, or affiliate is engaged in news gathering or the dissemination of news and information;
(C) an employee, contractor or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.
Proponents of this definition, which include SPJ, the American Society of Newspaper Editors, the Newspaper Association of America and the Reporters Committee from Freedom of the Press, among others, believe this definition is broad enough to cover traditional journalists as well as book authors and some freelance journalists and online journalists.
Under the definition, freelance journalists operating under contract or who are gathering, editing, photographic, recording, preparing or disseminating for a covered entity would be protected from forced disclosures. However, the language allows a court discretion in determining whether a freelance journalist who was not yet working “for” a covered entity — either by official contract or an informal agreement — would be covered by the protection.
It is less clear what type of internet activity would be covered. A journalist who maintains a blog based within a traditional media entity, such as The Washington Post’s Campaign for the Supreme Court, would be covered because the media entity would be protected. For an individual’s blogs to be protected, the person seeking coverage would have to show that he or she disseminates information and publishes a “newspaper, book, magazine, or other periodical in print or electronic form.” Whether a blog qualifies as a magazine or an electronic periodical will determine whether the person receives the protection.
As long as these decisions are made on a case-by-case basis and each side gets to present its case, 2004-05 SPJ President Irwin Gratz is comfortable with the definition.
“That’s what judges are there for,” he said. “We really do not want the government defining journalists, but as a practical matter they have to set some sort of schemes.”
Laura Merritt, the 2005 Pulliam/Kilgore intern for the Society of Professional Journalists, is a 2007 J.D. candidate at American University Washington College of Law. She earned a B.S. in journalism and a B.A. in political science from the University of Florida, where she was managing editor of the Independent Florida Alligator. She previously interned at the Student Press Law Center and Roll Call newspaper.
Tagged under: FOI
