QA: The Father of the Reporter's Privilege

Judith Miller went to jail in 2005 to protect the identity of her anonymous source. The New York Times reporter who became ensnared in the Valerie Plame leak investigation might not have had to go through the trouble had there been a federal media shield law on the books. The House of Representatives last week took the first steps in establishing such a protection by overwhelmingly passing a piece of legislation that would protect reporters from having to reveal their confidential sources in federal court.

New York Times General Counsel James C. Goodale is beseiged by reporters, 17 June 1971, on his arrival at court to answer charges brought against the paper regarding publishing top secret material.

Fordham law professor and host of the TV show "Digital Age" James Goodale has watched the law in this area develop for more than 30 years. He was the New York Times's attorney in the Pentagon Papers case in 1971 and was the attorney for reporter Earl Caldwell. Caldwell covered the Black Panthers in the 1960s and refused to reveal his sources when the Justice Department, under President Richard Nixon, began investigating the organization. His case became the Supreme Court case Branzburg v. Hayes, in which a 5-4 decision said that there was nothing constitutionally protecting reporters from revealing their sources in court. Because the fifth justice in the majority, Lewis Powell, wrote that there could be a protection for journalists under some circumstances, Goodale made a convincing case in a 1975 article. He has become an influential voice on the subject and is known as the "father of the reporter's privilege."

Goodale talked to U.S. News about the importance of the current legislation, which is expected to face a tough test in the Senate and in the White House, and why Judith Miller may have done her field a favor.

There are more than 30 states with shield laws. Why is it important that there be a federal one?
If you want to get absolute clear protection in a federal court, you need a federal shield law; otherwise you have to rely on the federal common law which is subject to many interpretations.

Is that mostly because of the split Supreme Court decision in Branzburg v. Hayes?
Branzburg was a 4-4 decision with Justice Lewis Powell in the middle. Powell's opinion was subject to multiple interpretations. When you go into federal court and someone says, "Let's look at the Powell opinion," everyone starts arguing. The federal shield law would make clear what it means.

If the federal law passes, would you consider this a victory?
I think what the House did is indeed a vindication of a generational fight for a reporter's privilege. The approach the House takes is the same approach we have urged upon the courts and upon media companies for this last generation. And indeed it's even better because they've added a balancing factor into the equation.

Can you explain?
The House bill is known as a qualified privilege, which means the court is balancing out various factors. How important disclosure is against nondisclosure. Will the public really benefit from this information? It also requires the court to look for alternate sources. It requires that when a prosecutor comes into court, he has to show that it is pretty damn important that he gets this information.

After the House passed its version of the shield law bill, President Bush immediately threatened a veto citing national security reasons. Does he have a point?
It's disappointing that when the ink has hardly dried on the House bill, the president immediately comes out and says he's against it. He says his reasons relate to national security. That may be so, but I think we have to realize that the president has not been overly supportive of press efforts during his tenure. With respect to claims of national security, I was the counsel in the Pentagon Papers case and I look at such claims with a highly jaundiced eye. There were a myriad of claims of damage to the national security...and not one of the claims ever proved out. Are there some instances in which the press should turn over information to the government? There are rare occasions. And the bill says, for example, if there is evidence of an imminent terrorist act the press should turn over that type of information. I think it would be turned over anyway without taking the press to court.

Would the House bill have prevented Judith Miller from going to jail?
I don't think she would have gone to jail, because one of the requirements in the bill is that a person's testimony must be essential to the carrying-out of the case. It turned out that Judy was not the big star in that case. [Fitzgerald] could have done his whole case if Judith Miller had been on Mars.