By Darren E. Weiss
These can be dangerous times for reporters. Just ask Lance Williams and Mark Fainaru-Wada, the San Francisco Chronicle writers whose 2006 book Game of Shadows exposed the BALCO steroids scandal involving such prominent sports figures as Barry Bonds, Jason Giambi, and track star Marion Jones.
The book generated a worldwide stir, and a federal investigation into the authors’ findings began soon after the book was released. Subpoenaed in front of a grand jury, Williams and Fainaru-Wada, both highly respected reporters, refused to name their informer and were sentenced to 18 months in prison for contempt of court.
The two repeatedly stated they would rather go to prison than reveal their sources, which would compromise the confidentiality essential to maintaining a free press. They avoided jail time, however, when an attorney pleaded guilty to leaking the information to the reporters and lying to federal prosecutors.
Many agree that a free and independent press is essential to democracy.
“Reporters rely on the ability to assure confidentiality to sources in order to deliver news to the public,” said House Representative Rick Boucher (D-VA) in a May 2 speech on the House floor where he introduced the Free Flow of Information Act of 2007. “Without the promise of confidentiality, many sources would not provide information to reporters, and the public would suffer from the resulting lack of information.”
Thirty-one states and the District of Colombia currently have “shield laws” — statutes that protect journalists from being forced to disclose confidential information in legal proceedings. These laws protect the rights of a journalist from revealing private sources, notes, or any other unpublished material in a civil or criminal hearing.
There is not, however, a federal shield law in the United States. Because the BALCO investigation was taken up by federal prosecutors, the San Francisco Chronicle reporters were not protected and were thus subject to incarceration. In 2005, 2006, and again in 2007, bills have been introduced in both the House and Senate to establish a federal shield law, but they have failed to gain sufficient support. Amid several roadblocks, none have come to a vote.
The BALCO case was certainly not the first in which reporters refused to disclose their sources. The driving forces behind establishing a federal shield law in Congress stem back to 1972 with the U.S. Supreme Court case Branzburg vs. Hayes. Reporter Paul Branzburg refused to reveal two sources in an article he wrote about the drug hashish, citing the provision for freedom of the press in the First Amendment of the Constitution. However, the Supreme Court ruled five to four that the press did not have a constitutional right of protection from revealing confidential information in court.
In the six years following Branzburg, 99 bills calling for a federal shield law have been introduced. Each one has failed. One major problem was that the bills’ supporters could not agree on how to define a journalist, a debate that continues today.
A.G. Block, former editor of the California Journal and the public affairs journalism director for the UC Center Sacramento, offered this definition:
“Simply put, a journalist is anyone who practices journalism,” he said. “It is a discipline which involves verification and balance in the effort to reach truth, regardless of the medium.”
These 99 bills also failed because supporters at the time wanted absolute protection against disclosing information, instead of protection in certain circumstances.
The recent case of Josh Wolf, a blogger who was incarcerated for eight months for refusing to turn over footage he shot at a 2005 protest in San Francisco — in which a police officer was beaten and a police car set on fire — has drawn national attention to the need for a federal shield law. Wolf, like Branzburg, relied on First Amendment rights to keep his sources concealed.
“If a journalist can’t create a trusting relationship with sources where there is a sensitive environment or conversation and there is no law to protect them, the public will be denied access to this information,” he said to City on a Hill Press (CHP).
However, Christine Tatum, president of the Society of Professional Journalists (SPJ), said, “Recent court rulings make it clear that the First Amendment is not all we need in place. It is clear there are times that we need to guarantee a person confidentiality.”
The SPJ is one of a dozen journalistic organizations currently lobbying for a federal shield law.
In 2006, Reporters Without Borders, a Paris-based journalist advocacy group, ranked the United States at number 53 out of 168 countries in its annual Worldwide Press Freedom Index. With Finland, Iceland, Ireland, and the Netherlands occupying the top spots, the United States fell nine places since 2005, due in large part to the deteriorating relationship between the Bush administration and the media over national security and terrorism issues. At the bottom of the index lie Iran, China, Cuba, and North Korea, where journalists sometimes risk their lives to report accurately.
Leading media lawyers began speaking publicly of the need for a federal shield law in the United States in 2004 and continue to do so today.
James Wagstaffe, a First Amendment media lawyer and co-founder of the San Francisco-based law firm Kerr & Wagstaffe LLP, spoke of the need for such legislation.
“Without a federal shield law, reporters have no apparent right to shield their sources from federal litigation,” he said. “State shield laws do not bind in federal court, which is why we need a federal shield law.”
In 2005, Senator Christopher Dodd (D-CT) launched shield law legislation in the Senate while Reps. Mike Pence (R-Ind.) and Rick Boucher (D-VA) did the same in the House. The Pence-Boucher bill, dubbed the Free Flow of Information Act of 2005, covered publishers, broadcasters, and wire services. The definition of a journalist would include freelance journalists working for a publisher or broadcaster, but not those without contracts.
Bloggers like Josh Wolf, and those practicing other forms of new media, were not explicitly mentioned in the bill. But due to fierce opposition from the U.S. Department of Justice and weak support, both bills failed on Capitol Hill.
Slight revisions were made to the bills, and in 2006 they were introduced in the 109th Congress. But with business groups such as the U.S. Chamber of Commerce and the Bush administration arguing the proposed shield was too broad, the legislations languished.
Earlier this month, Reps. Pence and Boucher and Senator Dodd presented revised legislations once again. A small change was made in the definition of who was covered by the shield law, but once again, bloggers were not mentioned and the extent to which they are considered journalists would be up to the court’s discretion.
Wolf supports a federal shield law legislation, but found problems with the bill’s language.
“The courts deciding who is a journalist is a very problematic approach to creating a shield law,” he said. “The next step from that is that all journalists have to register with the courts and get a permit from the courts,” which would give the government motivation to suppress certain reporters, Wolf said.
Debra Saunders, a conservative columnist from the San Francisco Chronicle who critically followed Wolf’s plight, encouraged the legislation as well but did not consider Wolf a real journalist.
“There are bloggers who are journalists because they have that sense of feeling that accuracy is important,” she told CHP. “I just don’t believe that he thinks accuracy is important because his arguments [for source confidentiality] are not credible.”
Wolf, who describes himself as “an artist, an activist, an anarchist and an archivist” on his blog, said the Bush administration does not support a free press and is clamping down on unsanctioned activity.
“Why earlier administrations didn’t push for a federal shield law, I’m not sure,” he said. “Maybe the fallout from Watergate is part of it.”
The Watergate fallout culminated in the 2005 dramatic revelation that W. Mark Felt, former assistant director of the FBI, was the whistleblower named Deep Throat who provided Washington Post reporters Bob Woodward and Carl Bernstein with key leads on the story that eventually caused President Richard Nixon to resign in 1974. This revelation prompted shield law supporters to become more visible. Pence has since used the opportunity to call on his colleagues to support the bill.
“History records that W. Mark Felt never would have come forward without the assurance made to him of confidentiality,” Pence said in a press statement. “Thirty years later, the press cannot make that assurance to sources, and we face the real danger that there may never be another Deep Throat.”
Such an inability, he said, does not represent a free and independent press.
According to Wagstaffe, last year was the most dangerous year in the history of journalism with respect to reporters protecting their confidentiality.
Though no official records are kept, “the number of reporters subpoenaed to testify in this last year is exponentially greater than in previous years,” Wagstaffe said.
According to a 2006 report by the Criminal Division of the U.S Department of Justice, approximately 65 requests for media subpoenas have been approved by the attorney general since 2001.
Should Congress pass a federal shield law, there will be an immediate decrease in the number of journalists subpoenaed to testify for two reasons, Wagstaffe continued.
“One, it will represent a policy that will encourage prosecutors and judges not to compel reporters to testify,” he said. “Two, prosecutors will not win these motions because reporters will resist the subpoenas and, because of the shield law, they’ll win.”
Tatum has been one of the most outspoken advocates of shield legislation since 2005, raising $30,000 to support shield law campaigns in the last year alone. Yet she warns journalists to be cautious when using anonymous sources.
“Anonymous sources undermine the credibility of the news when they are viewed too often,” she said. “Newsrooms have incredible black eyes because of misuse and abuse of anonymous sourcing.” However, those are issues newsrooms need to address without the threat of lawyers, she said.
Bob Calo, a senior lecturer at UC Berkeley’s Graduate School of Journalism, also expressed concern.
“When journalism became more broadly interpreted to include celebrity, entertainment and other ‘non-news’ material, it eroded its case for special statutes,” he wrote in an e-mail to CHP.
Citing journalism’s erosion as a “homegrown” problem, Calo continued, “A critic could easily argue that if you are going to extend federal law to protect a specific enterprise, there must be unimpeachable trust.”
On Sept. 21, 2006, U.S. District Judge Jeffrey White informed Chronicle writers Lance Williams and Mark Fainaru-Wada that they faced 18 months in prison if they did not reveal their sources in the BALCO steroid case.
In a statement addressed to Judge White made on that same day, Williams underscored all that was at stake.
“[The U.S. government] demand[s] that I give up my career and my livelihood,” Williams said. “They demand that I throw over some of my most deeply held ethical and moral beliefs. Finally, they demand that I betray our First Amendment, which I have tried to serve. Judge, I despair for our Free Press if we go very far down this road.”