A New Shield for the “Enemy?”

July 30, 2018 | Insights

By Jorge Padilla

It’s no secret that President Trump’s relationship with the press during his administration has been rocky, at best. In a July 3rd tweet, the president alleged that the “Washington Post is constantly quoting ‘anonymous sources’ that do not exist.” From allegations of “fake news” to his claim that the news media were the “enemy of the people,” Trump has made clear his distaste for the press.

Earlier this year, the Trump administration showed that it will practice what Trump has preached concerning the media, when the Department of Justice secretly seized several years of email and phone records from The New York Times reporter Ali Watkins in furtherance of an investigation of a Congressional aide. (Watkins had been in a three-year relationship with the Congressional Aide, James Wolfe, who was arrested on June 7th in connection with the investigation). This followed a statement by Attorney General Jeff Sessions in October 2017 that he could not make a “blanket commitment” not to put journalists in jail for failing to provide information under subpoena.

The administration’s statements—and now actions—may have reinvigorated efforts to finally pass a federal shield law to protect a reporter’s confidential sources. According to the Society of Professional Journalists, 49 states and the District of Columbia have shield laws or court rulings that allow some privileges to subpoenaed reporters (Wyoming being the lone holdout). These statutes provide protections for reporters protecting confidential sources where the federal First Amendment jurisprudence has failed to do so.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the United States Supreme Court ruled that a reporter did not have a First Amendment privilege to refuse to answer questions before a grand jury if the reporter had actually witnessed criminal activity. However, through a combination of concurring and dissenting opinions in the Branzburg case, other courts have interpreted a “qualified privilege” for reporters to avoid having to disclose their anonymous and confidential sources. But the application of the qualified privilege depended on the circuit in which the privileged was being tested. For example, the Fifth Circuit recognizes a qualified privilege in civil cases but generally not for criminal cases. See Miller v. Transamerican Press, Inc., 621 F.2d 721, modified, 628 F.2d 932 (5th Cir. 1980); United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998). The Eleventh Circuit, on the other hand, protects reporters and their confidential sources regardless of whether the claim is criminal or civil. United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013). Ultimately, the Branzburg opinion resulted in an unclear privilege that depended upon the court in which the case was pending.

The lack of consensus among the circuits is one of the driving factors behind the federal shield law. In November 2017, the Free Flow of Information Act, H.R. 4382, was introduced “to protect the exercise of freely reporting critical information to the American public by establishing federal protection from compulsory disclosures for journalists.” On July 24, 2018, a hearing was held in support of the bill before the Subcommittee on Intergovernmental Affairs and the Subcommittee on Healthcare, Benefits, and Administrative Rules of the United States House of Representatives Committee on Oversight and Government Reform.

It’s too soon to tell whether or not the Free Flow of Information Act will gain traction and garner enough support to become law. It probably doesn’t hurt that one of the bill’s sponsors, Rep. Jim Jordan (R-OH), is a vocal supporter of President Trump, or that a nearly identical bill was previously introduced by Vice President Mike Pence. The deciding factor, however, will likely be the benefit guaranteed to the American people through the protection of confidential sources.

Countless news stories of vital importance to the American people may never have been broken but for the help from anonymous sources. The most famous of these stories was the Watergate scandal, reported by Washington Post reporters Bob Woodward and Carl Bernstein with the help from confidential informant, “Deep Throat” (later revealed to be FBI Associate Director Mark Felt). Other stories that were first reported with assistance from confidential sources include the Pentagon Papers, Abu Ghraib, Enron, and the recent Harvey Weinstein allegations, which gave traction to the current #MeToo movement. As set forth by Rick Blum, the Policy Director of the Reporters Committee for Freedom of the Press, in his testimony in support of the Freedom of Information Act, “confidential sources are vital to keeping citizens informed about our communities—our local government, schools, and workplaces—as well as about national stories that impact us and our lives.”

While reporters may not be perfect, they still “serve[] and w[ere] designed to serve as a powerful antidote to any abuses of power by governmental officials.” Mills v. Alabama, 384 U.S. 214, 219 (1966). In that sense, a federal shield law may help to guarantee that the news media can continue to serve as an ally to, rather than the enemy of, the American people.

Meet Jorge

Jorge A. Padilla is a partner in Jackson Walker’s Litigation section and advises clients on business disputes both before and after litigation has commenced. Jorge has extensive experience litigating business disputes for a variety of clients, including trustees, executors, tech companies, property managers, real estate investors and developers, healthcare providers, pension funds, and media companies. He is also experienced in the areas of probate and fiduciary litigation involving will contests, trustees, executors, and other trustees.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.