ACLU Letter To Senator Leahy and Senator Specter Regarding Reporters' Shield Legislation

September 26, 2007

Washington, DC 20510-4502

The Honorable Arlen Specter

Ranking Member, Senate Judiciary Committee

711 Hart Senate Office Building

Washington, DC 20510-3802

Re: Reporters’ Shield Legislation

S. 2035, The Free Flow of Information Act of 2007

Dear Chairman Leahy, and Ranking Member Specter:

On behalf of the ACLU, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we urge you to amend S. 2035 during markup to narrow the National Security exception and to provide greater protection to defendants facing loss of life or liberty.

To further First Amendment rights, the ACLU generally supports the concept of a reporters’ privilege or shield to protect their confidential sources.[1] We are concerned, however, that the national security exception could be misused in such a way as to nullify any protection afforded a reporter’s source. Additionally, a balancing test regarding a defendant’s right to compel testimony may be insufficient to protect defendants from being unjustly convicted. If the Free Flow of Information Act is amended to narrow the national security exception, and adequately protect defendants’ rights, and no problematic amendments are adopted, the ACLU would support this legislation.

Reporters’ Privilege is Important to Maintain the Flow of Information to the Public

From Deep Throat to Enron, the public has been informed about matters of public interest through reporters who rely on confidential sources. Reporters have been able to obtain this information because these confidential sources believed they would be assured anonymity. Increasingly, however, reporters are being subpoenaed for their sources, particularly in federal matters, where no reporters’ privilege exists.

Currently, forty-nine states and the District of Columbia recognize some form of reporters’ privilege, either through statute or common-law.[2] In 1972, the Supreme Court, in a 5-4 opinion, refused to find even a qualified First

Amendment privilege for reporters.[3] Since Congress has not yet acted on creating such a privilege, none exists at the federal level.

If a reporter is not able to provide her sources confidentiality, it is likely that those sources will not reveal the information, leaving the public in the dark.

Because information is essential to an informed electorate, the ACLU supports the concept of providing a conditional privilege for confidential sources. While S. 2831 provides important protections, the broad national security exception risks undercutting the privilege granted in the legislation and the balancing test for defendants when seeking exculpatory information risks depriving defendants of a fair trial.

The Rights of the Accused To a Fair Trial Should Be Better Protected

Predecessors to this bill provided what appeared to be an absolute privilege for the source of the information, except in the case of national security. The ACLU objected to those provisions, as they could lead to an innocent person being convicted or executed. S. 2035 now requires a court to find “that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news in maintaining the free flow of information.” This appears to require a balancing of interests which is inappropriate where someone’s life or liberty is at stake.

Under the Sixth Amendment, the accused has a right “to have compulsory process for obtaining witnesses in his favor.” A criminal defendant should therefore have the right to subpoena testimony and evidence from a journalist with respect to material that was not obtained under confidential circumstances in the same way that he can subpoena testimony and evidence from any other person.

On the other hand, it is appropriate to require even a criminal defendant to make a special showing of need before compelling the disclosure of the identity of a confidential source or of materials that were obtained under confidential circumstances. If a criminal defendant can demonstrate that he needs certain evidence for his defense and cannot obtain it elsewhere, the bill should make it clear that he will be given access to that information.

Because S. 2035 requires a court to balance “both the public interest in compelling disclosure in the public interest in gathering news and maintaining the free flow of information” in making its decision regarding disclosure to a defendant, a defendant’s right to fair trial may not be adequately protected under the standard in the bill. A defendant’s right to a fair trial and ability to defend himself against criminal charges should always outweigh the public interest in newsgathering; thus a balancing testing is not appropriate in this context.

The National Security Exception Is Overbroad

The bill includes an overbroad national security exception that should be significantly narrowed. Section 5 of the bill creates an exception where a federal court has found by a preponderance of the evidence that disclosure would “assist in preventing a specific case of terrorism against the United States; or significant harm to national security that would outweigh the public interest in newsgathering and maintaining a free flow of information to citizens.”

At a minimum, the harm to be avoided by invoking the exception must be “imminent” harm. Absent a requirement of imminent harm, the government may be able to override the privilege on some theoretical harm that may or may not occur in the future. The standard of “significant harm to national security” may well prove to be too broad, particularly when the government relies upon conclusory statements.[4]

A reporters’ shield is not inconsistent with national security. The fledgling democracy in Afghanistan protects the confidentiality of journalists’ sources.[5] Our European allies have long faced the threat of international terrorism, yet provide protection for journalists’ sources.[6] Austria and France provide absolute privileges for journalists,[7] while at least 15 additional nations have a qualified privilege.[8] Sweden makes it a crime to disclose a source without the source’s permission. Under its Freedom of the Press act, unauthorized disclosure is punishable by a fine and up to one year in jail.[9] Thus, other countries have successfully implemented shield laws even in the face of international terrorism.

The Bill Recognizes the Increasing Importance of Alternative Media

S. 2035 uses a functional definition of journalism: “journalism” means the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public. This definition strikes the appropriate balance by including bloggers who regularly gather and report on the news while excluding those who blog on personal matters.

We applaud Senators Specter and Leahy, and the others working on this important bill, which obviously required some negotiation and compromise. For a people to truly govern themselves, they must have information about what their government is doing in their name. As James Madison said in 1822, “A popular government without popular knowledge or the means of acquiring it is but a prelude to a farce or a tragedy or perhaps both.” S. 2035 is an important step in guaranteeing the public access to information and avoiding both the farce and the tragedy.

We look forward to working with you further on this important bill. Sincerely,
Caroline Fredrickson
Director, Washington Legislative Office Marvin J. Johnson
Legislative Counsel

cc: Members of the Committee

[1] For a more comprehensive review of the need for a reporters’ shield law, see “Publish and Perish: The Need for a Federal Reporters’ Shield Law,” ACLU, 2007, at: /pdfs/freespeech/publishperish_20070314.pdf

[2] Thirty-one states have adopted a reporters’ privilege through statute. Eighteen states have recognized some form of reporters’ privilege through common-law interpretation. Wyoming is the only state that has not recognized a reporters’ privilege in any form.

[3] Branzburg v. Hayes, 408 U.S. 665 (1972). Although Justice Powell was one of the five in the majority, he also authored a concurring opinion in which he found that reporters have a qualified privilege to refuse to testify regarding criminal conduct. Given the majority’s categorical refusal of the reporters’ claims, Justice Powell’s concurring opinion served primarily to muddy the waters. The Court did note, however, that Congress and the states were free to enact such privileges if they so desired. In the wake of Branzburg, several states accepted that invitation.

[4] This is not inconceivable, since the Administration already uses “state secrets” to shut down litigation against its warrantless wiretapping program.

[5] Publish and Perish, supra, at 21.

[6] Id.

[7] Id.

[8] Id.

[9] Id.