EDMUND BURKEHere’s a concise legal briefing that may be helpful to understanding the so-called Associated Press scandal.
Do journalists have a constitutional privilege that protects them from criminal investigations seeking to learn the identity of sources? The Supreme Court has said no. It made that decision in the case of Branzburg v Hayes, 408 U.S. 665 (1972). Writing for the Court, Justice Byron White said:
“[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. …The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.”
Among other things, the Court was concerned about determining who members of the press are. A journalist’s privilege is far more troublesome to apply than, say, the attorney-client privilege or doctor-patient privilege, because it’s easier to identify a lawyer or doctor than a journalist. “Sooner or later,” wrote the Court, “it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Obviously, the internet has complicated this even further.
The Court certainly did not write freedom of the press out of the First Amendment. “We do not question,” it wrote, “the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.” But the Court suggested that the normal principles and procedures that apply to all citizens – with courts being sensitive to the First and Fifth Amendment concerns – were adequate to protect the press from improper investigations. The Court noted that the press can challenge subpoenas or grand jury inquiries that are not undertaken in good faith or serve legitimate objectives of law enforcement.
In a concurring opinion, Justice Powell wrote: “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. …The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Some lower courts and scholars have read the majority opinion, together with Powell’s concurrence, as implicitly recognizing some kind of journalist’s privilege – perhaps a conditional common law privilege as opposed to a constitutional privilege – but most courts read Branzburg as rejecting a journalist’s privilege of any kind. Frankly, despite ambiguities and my own preferences, that’s how I read the Court’s opinion.
The most fascinating aspect of Branzburg is this: A dissent by Justice Potter Stewart, and joined by Justices William J. Brennan and Thurgood Marshall, has been more influential than the opinion of the Court itself.
Stewart thought that journalists should enjoy a conditional privilege that must be balanced against the legitimate need of the government to investigate and prosecute crimes. Stewart said the balancing should work as follows:
“[W]hen an investigation impinges on First Amendment rights, the government must not only show that the inquiry is of ‘compelling and overriding importance’ but it must also ‘convincingly’ demonstrate that the investigation is ‘substantially related’ to the information sought.
“Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. They must demonstrate that it is reasonable to think the witness in question has that information. And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties.”
Forty states and the District of Columbia have enacted shield laws along the lines advocated by Justice Stewart. So throughout most of the country, state prosecutors must follow Stewart’s prescriptions.
Congress, however, has never enacted a federal shield law protecting journalists. Nonetheless, the Department of Justice has adopted formal regulations (28 C.F.R. §50.10) and internal guidelines (USAM 9-13.400) for subpoenaing the news media, which are also along the lines of Stewarts’s dissenting opinion. Although those regulations are designed to create departmental policy and not create rights, federal agencies are – as a matter of administrative law – required to follow their own regulations.
DOJ’s regulations state that “the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.” Its guidelines related to subpoenaing telephone toll records – which is what occurred in the AP case – read in pertinent part:
“…Department attorneys should take all reasonable steps to attempt to obtain the information through alternative sources or means. In addition, Department attorneys contemplating issuing a subpoena to a member of the news media must first attempt negotiations with the media aimed at accommodating the interests of the trial or grand jury with the interests of the media. Negotiations with the affected media member must also precede any request to subpoena the telephone toll records of any member of the news media, so long as the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the investigation at issue.” emphasis added).
It is, of course, preferred that the government give prior notice so that the subject of the subpoena can obtain court review before the government obtains the information. But if no prior notice was given because the assistant attorney determined that prior notice would substantially threaten the investigation. In that circumstance, DOJ is then required to give notice within 45 days of obtaining the subpoena. That’s what happened here.
AP is incensed that its telephone toll records were obtained without prior notice. (These are records of who called whom, when, and how long the call lasted.) The Reporters Committee for Freedom of the Press has written a letter contending that DOJ did not comply with its regulations, and arguing the episode demonstrates that Congress needs to enact a strong shield law. Attorney General Eric Holder says the Justice Department was investigating “a very, very serious leak” that “put the American people at risk, and Deputy Attorney General James Cole has written a letter claiming DOJ followed its regulations.
If it believes it can do so successfully, AP will now presumably challenge the subpoena in court. In that event, DOJ will have to show that it complied with its own regulations. Meanwhile, other DOJ subpoenas seeking to discover a journalist’s sources are coming to light. (More about that here.) Because both AP and these other matters involve criminal investigations, DOJ is constrained from defending itself in the court of public opinion. Thus, it’s in the courts of law where this will have to be resolved.