The Squeeze on the Press

[Sun Baked]

The American Bar Association recently had a new article...

MONDAY, MARCH 7, 2005

THE SQUEEZE ON THE PRESS
More Courts Are Forcing Reporters to Testify as Judges Reconsider Media Privilege

BY WENDY N. DAVIS

For more than 30 years, federal courts generally have been deferential toward journalists when it came to having them testify about information learned while reporting.

But over the last year, the tide appears to have turned. In a series of well-publicized cases, journalists from major media have been held in contempt of court for refusing to testify before grand juries.

In October, U.S. District Judge Thomas Hogan in Washington, D.C., held New York Times reporter Judith Miller and Time magazine’s Matthew Cooper in contempt for refusing to answer questions in the investigation about the leaking of the identification of CIA agent Valerie Plame. The case went before the U.S. Court of Appeals for the D.C. Circuit in December.

Five reporters—from The New York Times, the Los Angeles Times, CNN, the Associated Press and The Washington Post—were held in contempt last year by U.S. District Judge Thomas Penfield Jackson and fined $500 a day for declining to reveal sources who gave them information about former Los Alamos, N.M., scientist Wen Ho Lee, who filed a civil lawsuit against the government for violating his privacy rights. (The fines are stayed while the reporters appeal.)

In Providence, R.I., television reporter Jim Taricani was held in contempt by U.S. District Judge Ernest Torres and sentenced to six months of home confinement for refusing to divulge the name of a source who gave him an FBI videotape...

...On the federal level, reporters occasionally were ordered to testify in grand jury proceedings, and more than a dozen were briefly jailed between 1984 and 2000.

Although the circuits were split on the issue, many judges nevertheless seemed to allow journalists more protection from testifying than other witnesses.

Then, in 2003, a decision by Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals changed the landscape. In McKevitt v. Pallasch, 339 F.3d 530, two reporters objected to a district court judge’s order requiring them to turn over interview tapes of a witness to a criminal defendant in Ireland.

The appeals court ruled against the reporters, with Posner debunking the notion that Branzburg created special protections for journalists.

“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege, though they do not agree on its scope,” Posner wrote. “It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoena.”

The opinion left the media bar reeling. “We all got it and immediately started gasping for air,” Dalglish says.

Some judges still adhere to the old interpretation of Branzburg, says Sandy Baron, executive director of the Media Law Resource Center, a New York City-based nonprofit clearinghouse. But Baron, as well as other advocates, worry that they no longer can rely on the courts.

Instead, they’re pushing for a federal shield law—“a terribly important issue for the press at this moment,” Baron says.

Journalists argue that they can’t do their jobs unless sources can be assured of confidentiality—particularly on sensitive matters like national security....

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