eKC feature
March 31, 2006


Why we need a reporter’s shield law in Missouri now
by Ellen F. Harris

Reporters under subpoena in Missouri are unprotected before the court. They have no law, federal or state, with which to cloak themselves and their confidential sources.

First Amendment attorneys once believed that two legal precedents provided sufficient protection. But the increase in the number of subpoenas and contempt of court charges against reporters, especially dramatize in last summer’s “Plamegate” — CIA operative Valerie Plame, husband and diplomat Joseph Wilson, New York Times reporter Judith Miller and Time reporter Matthew Cooper — makes it clear that journalists need special laws to shield their confidential sources.

“The frequency of subpoenas in this state has really convinced me that we need a state shield law. Recent developments nationally tell me that we need a federal one, too,” says Jean Maneke, of the Maneke Law Group in Kansas City.

As a hotline attorney for the Missouri Press Association, Maneke says she receives about a call a month from reporters and editors holding subpoenas in their hands.

Why the recent flurry of subpoenas? Some trial attorneys suffer from LLS — “Lazy Lawyer Syndrome.” Others represent a litigious culture. “Attorneys have gotten lazy about doing discovery (the research for trial evidence) and subpoena reporters rather than doing the actual digging they need to do to make their cases,” Maneke explains.

“Litigants who feel they can’t get a fair shake suing the media now think they can subpoena them to death,” says Bernard “Bernie” J. Rhodes of Rhodes, Lathrop and Gage in Kansas City, a 21-year veteran of the First Amendment wars who has represented media outlets in 15 confidentiality cases, including The Kansas City Star, the Kansas City Business Journal, and KCTV, in Kansas City. Plaintiffs’ lawyers often ask for television out-takes and reporters’ notebooks, he says.

What frightens reporters should scare all citizens. “Our Bill of Rights establishes the media as a watchdog for our institutions,” Mark Sableman of Thompson Coburn LLP in St. Louis points out. “The First Amendment protects the public, too.”

He is past president of the American Civil Liberties Union-Eastern Missouri.

Sen. Christopher Dodd (D-CT) agrees. “This is not about conferring special rights and privileges to the media. This is less about protecting journalists than it is about protecting ourselves,” he told the Associated Press.

Say, for example, some USDA inspectors take bribes to approve tainted meat. An honest inspector might hesitate tipping off an investigative reporter for fear of losing his job. It is not just the reporter who suffers, losing his shot at a Pulitzer Prize; consumers lose, too.

“Reporters need a shield law as an essential tool. We need one in Missouri because a national law would only cover the federal courts, not our circuit courts,” continues Sableman, a media lawyer for 26 years representing KMOV-TV, the St. Louis Business Journal and the Missouri Broadcasters Association. “We need those laws now,” he says, “on state and federal levels.”

What was once a journalism issue became headline news last summer with Plamegate. Federal appellate judges upheld contempt of court charges against Miller and Cooper when they refused to name their secret sources to a federal grand jury investigating who outted Valerie Plame. Cooper finally cooperated while Miller sat in her jail cell for 85 days until her old friend and news source, Scooter Libby, released her from her promise of confidentiality.

“The climate for journalism has shifted,” Rhodes explains. “A couple of years ago the big concern was Janet Jackson exposing her breast and the FCC.

“Now, the conservatism emanating from Washington has had an effect on news gathering in the heartland. TV producers and news directors have seen the tone of the federal government and of the federal courts. They (the reporters) view themselves as targets. I have sat in on meetings with news directors, producers and reporters who decided not to do a story because of what we’d get dragged into afterward,” he says.

There are two strong reasons for the media to be intimated: The color of money and the weakening clout in court.

“Fighting subpoenas can cost thousands of dollars. Only the big papers (and broadcast stations) can afford to have attorneys on retainer,” Maneke points out. “There are probably cases of small town papers where the reporters have been subpoenaed to come to court with their notes and the publishers have made the decision to send them because they cannot afford to spend the money to fight the subpoenas,” she says.

Reporters wrapping themselves in the First Amendment no longer impress some judges. “Even before the Miller and Cooper cases, the media have been hurt by recent judicial decisions such as Judge Richard Posner’s 2003 ruling in McKevitt,” Sableman explains.

To understand McKevitt, one first must understand its underlying precedent in Branzburg.

Branzburg v. Hayes

The landmark U.S. Supreme Court opinion, Branzburg v. Hayes, 1972, can be difficult to interpret. While all nine Supreme Court justices found that reporters are entitled to some First Amendment protection, they ruled 5 to 4 against the journalists in the co-joined cases. Justice Powell concurred with the majority, yet wrote an opinion that seems to agree with the dissent, that is, for the reporters.

“Justice Powell was the Sandra Day O’Connor of his day,” Sableman points out. “The media lost the case, but nonetheless the courts have generally interpreted Branzburg as a media win.”

Indeed. Without Branzburg, there would have been no Pentagon Papers, no Watergate stories, because both were based on anonymous sources. Floyd Abrams’, the esteemed First Amendment lawyer, told the Senate Judiciary Committee. He made his remarks during his testimony on the proposed federal shield law. Abrams initially represented Miller and Cooper in Plamegate. As a young attorney, he worked on the amicus curiae, friend of the court, brief in Branzburg.

The courts have interpreted Branzburg to mean three conditions must be met before a judge can order a reporter to turn over his confidential notes and tapes, and, or testify: 1) There must be a viable case. 2) The reporter’s information goes to the heart of that case. 3) The opposing party has exhausted all other sources to obtain the information.

The Missouri Court of Appeals, Western District, gave the first precedent in a Missouri appellate court of a qualified reporter’s privilege in Classic III Inc., v. Ely, in 1997, a quarter of a century after Branzburg. Writing for the unanimous three-judge panel, Judge Laura Denvir Stith applied a four-factor test, similar to Branzburg, to determine whether the protection would apply in a libel suit. The courts should consider, she wrote: 1) Whether the person seeking the identity of a confidential source has exhausted all other means of discovering it. 2) The importance of protecting the source’s identity. 3) Whether the information sought is crucial to the plaintiff’s case. 4) Whether the plaintiff has presented sufficient evidence for a libel suit.

Stith wrote that if journalists were forced to reveal the names of their confidential sources “their credibility would be seriously harmed and their sources of information would be irreparably damaged. The press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired.” The well-regarded Judge Stith now sits on the Missouri Supreme Court.

McKevitt v. Pallasch

The judges on the Washington DC federal appellate court who ruled against Miller and Cooper based their decision on McKevitt v. Pallasch, a 2003 ruling from the 7th Circuit U.S. Court of Appeals, in Chicago. In the majority opinion, Judge Richard Posner wrote, “We do not see why there need be special criteria merely because the possessor of the documents or other evidence sought is a journalist.” He noted that the confidentiality extended by Branzburg does not apply to a book author’s unpublished taped interviews. Posner reprimanded those who “audaciously declare that Branzburg actually created a reporter’s privilege.” He chided his colleagues who dissented in McKevitt by saying that they “may be skating on thin ice.”

“Posner’s opinion was a turning point,” Sableman explains. “It cast doubt on the prevailing pro-media interpretation of Branzburg.”

Rhodes says the Miller and Cooper cases have forced him to alter trial strategy. “I had just geared up for battle in Kansas, and I wasn’t about cite federal case law knowing the opposition could blow me out of the water with the Miller-Cooper cases where the U.S. Supreme Court denied cert (certiorari, Latin for review). Normally, I’d rather be in federal court because I find federal judges more sympathetic to the First Amendment. But now the opposition could cite the DC federal circuit where the judges said there is no privilege,” he says.

Miller is far from the first reporter to be imprisoned for refusing to name names. The Reporters Committee for Freedom of the Press web site (www.rcfp.org) lists 17 journalists who have been jailed since 1972. St. Louisans will recall how Richard Hargraves, a reporter at the Belleville (Illinois) News-Democrat, made headlines in 1984 when he spent a weekend in home confinement until his source came forward in his libel case.

Hargraves later lobbied for a broadening of the reporters’ shield law in the Illinois legislature so that it would cover libel suits which until then had been exempt from the Illinois shield law. Vanessa Leggett, a Houston author researching a true crime book, was jailed for 168 days, in 2001, for remaining silent about her sources to federal grand jury. She was freed only when the grand jury’s term expired. Jim Taricani, Providence, RI, television reporter spent four months in home confinement in 2002 for declining to reveal a source’s identity.

The Free Flow of Information Act

The United States lags behind other nations in protecting journalists from overzealous prosecutors and lawyers. France, Germany and Austria give full protection to their journalists, while Japan, Argentina and New Zealand provide some.

Congressmen of both parties have proposed legislation in both houses for a national law protecting journalists and their sources. U.S. Reps. Mike Pence (R-IN) and Rich Boucher (D-VA), and Sen. Richard Lugar (R-IN), have introduced the joint bill, the Free Flow of Information Act. This would give journalists and authors absolute privilege in protecting their anonymous sources with one exception: When all other sources are exhausted and disclosure “is necessary to prevent imminent and actual harm to national security.”

Sen. Dodd also has introduced a shield bill with no exceptions to confidentiality even when not promised by the media. Dodd has also signed onto Sen. Lugar’s bill.

Joseph Martineau who represents the St. Louis Post-Dispatch, the Belleville News-Democrat and other papers in southern Illinois and, on occasion, Fox-2 News, is not convinced such new legislation will help. “Unless the statutory privilege is absolute, I am concerned whether the situation will be any better. What a legislature gives, it can later take away,” he says. “They seem to provide no greater protection than existing court precedent.”

Abrams summed up the need for protecting confidential sources in his Senate testimony: “We have a genuine crisis before us. In the last year and a half, more than 70 journalists and news organizations have been embroiled in disputes with federal prosecutors and other litigants seeking to discover unpublished information; dozens have been asked to reveal their confidential sources; some virtually at the entrance to jail. It is time to adopt a federal shield law.”

This article originally appeared in Belles Lettres, January/March 2006, published by The Center for the Humanities at Washington University, St. Louis, MO, used by permission of the center. Ellen F. Harris is a freelance writer who teaches journalism at Washington University.


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