By J. David Cox Sr. |
The First Amendment principles underlying a free and independent press are well understood. Unfortunately, the importance of protecting reporters' confidential sources is not.
A crazy quilt of laws across the country covers the protection afforded to confidential sources. The laws differ from state to state. State courts differ from federal courts. And federal courts differ from each other, with some providing little protection.
Against this backdrop, reporters may promise confidentiality, but cannot be sure whether their promises will be enforced by a court or prompt a contempt sanction. Consequently, sources are reluctant to speak, the public is deprived of valuable information and the government is prone to overreaching to unmask sources, like the Department of Justices's secret subpoenas for the Associated Press' phone records.
A federal shield law would ensure everyone understands the ground rules from the moment reporters and sources talk to the time a litigant contemplates a subpoena. It also would continue our country's historic recognition of the constitutional roles played by the press and anonymous speech.
The first American leak case began in 1734 when a publisher refused to divulge the anonymous source of criticism printed about a Crown Governor. The government prosecuted the publisher criminally, but a jury acquitted him. As Justice Thomas has explained, the jury's verdict "signified at an early moment the extent to which anonymity and the freedom of the press were intertwined."
That verdict was no isolated incident. In 1779, members of the Continental Congress rebuffed an effort to compel a printer to identify an anonymous author who accused other Congressmen of crimes, condemning that effort as a restraint on "liberty of the press."
These early moments in American history sparked our tradition of protecting confidential sources and paved the way for undercover reporting that has revealed everything from corporate wrongdoing to presidential abuses.
In the late 19th century, Maryland passed the country's first shield law after a reporter was jailed for refusing to name his sources about secret grand jury proceedings. Since then, nearly all states have protected reporters' sources, recognizing the vital role they play in public affairs. But at the federal level, the law is inconsistent and unevenly applied. As a result, and as the sweeping AP subpoenas demonstrate, the press remains vulnerable. That should change.
History shows protecting sources is critical for the press to serve as a check on government and to assure a freer flow of information on matters of legitimate public concern.
About Michael Berry Media Lawyer and Partner at Levine Sullivan Koch & Schulz, LLP
Randall Eliason Professorial Lecturer in Law at George Washington University Law School