ABA Backs Shield Law for Reporters

The American Bar Association, at its annual meeting in Chicago Tuesday, backed a federal shield law for reporters.

"Our action today acknowledges the important role of journalists and the media to providing the public with significant information to ensure an informed democracy, and reporters' need to be able to protect sources in order to get that information," said Michael S. Greco of Boston, ABA's president. "It also recognizes reasonable standards for compelling journalists to name sources or disclose information gleaned in gathering news," he said.

The ABA declined 30 years ago to back a reporter shield law, but lawyers reconsidered the proposal after New York Times reporter Judith Miller was jailed a month ago for refusing to testify to a grand jury investigating the leak of the identity of undercover CIA officer Valerie Plame.

The ABA endorsement has exceptions:

The ABA said reporters should be able to shield their sources, but with exceptions. In order to force disclosure, a prosecutor would have to show "that the information sought from a journalist is essential to a critical issue, that all reasonable alternative sources for the information have been exhausted, and that the need for the reporter's information clearly outweighs the public interest in free flow of information," the ABA said.

Let's compare that with existing regulations:

28 CFR 50.10

§ 50.10 Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function. In balancing the concern that the Department of Justice has for the work of the news media and the Department's obligation to the fair administration of justice, the following guidelines shall be adhered to by all members of the Department in all cases:

(a) In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, 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.

b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

....(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply:

(1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation--particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.

The reason a law is necessary given existing regulations is that regulations are not binding. I haven't seen the text of the ABA resolution, but it doesn't sound from press reports that it endorsed the criminal case standard. I hope it did.

< Hillary v. Pirro: Their Websites and Husbands | Gonzales Urges Mandatory Minimums for All Federal Crimes >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Re: ABA Backs Shield Law for Reporters (none / 0) (#1)
    by squeaky on Sat Dec 17, 2005 at 01:02:08 PM EST
    I do not understand what a shield law would do for Miller at this point, or why it is anything but a smokescreen. Would Miller be off the hook with a shield law that either did or did not include criminal case standard? Why is the ABA getting behind Miller now? Coud it be that most of the crooks involved are also Lawyers?

    Re: ABA Backs Shield Law for Reporters (none / 0) (#2)
    by BigTex on Sat Dec 17, 2005 at 01:02:09 PM EST
    A shield law is an excellent idea, reporters give their word to protect their sources, but that is an etherial promise as has been seen receintly. Miller did the right thing by going to the slammer. She shouldn't have had to. It wouldn't do any good for the current problems, but would allow reporters to act freely in the future. Many states already have a shield law and mass chaos isn't the result. It's time for the feds to catch up with the states on this one.

    Re: ABA Backs Shield Law for Reporters (none / 0) (#3)
    by squeaky on Sat Dec 17, 2005 at 01:02:09 PM EST
    But even if there was a Fed shield law in place before Miller went to the slammer, along the lines of TL's, Miller would be in the same place because Fitzgerald has exhausted all other possibilities, no?