To Stop Overreaches Like the AP Debacle, Congress Must Step Up

The judiciary can't fix this: The Supreme Court has a poor track record protecting journalists from the government.

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Adrees Latif/Reuters

In early 1800, the Philadelphia Aurora revealed that the Senate was secretly considering a bill that would, in essence, have allowed the Federalist Party to set aside the upcoming presidential election. The Senate immediately summoned Philip Duane, the editor, to explain where he'd gotten the information. Duane went into hiding; after Thomas Jefferson defeated John Adams, the case petered out.

But the issue of press sources and investigators has never gone away.

On Monday, the Justice Department admitted that it had secretly seized as much as two months of phone records of the Associated Press. The seizure was apparently part of an investigation into an alleged leak about an ongoing intelligence operation in Yemen. The government says that the leak had put Americans in danger. (The AP denies this.)

The special prosecutor conducting the probe appears to have complied with Justice Department regulations. These require approval by the Attorney General; in this case, Attorney General Eric Holder recused himself because he had earlier been interviewed for the leak probe, and the subpoena was approved by his deputy, James M. Cole. The regulations allow secrecy when notifying the news organization would "pose a substantial threat to the integrity of the investigation."

But the regulations also emphasize that such subpoenas ordinarily are to be narrow. Secrecy is disfavored too -- most records requests are to be resolved by negotiation rather than unilateral action. Previous seizures of records were much narrower, Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press, said in an interview Tuesday. In this case, he said, "they showed no respect in paying even lip service to the First Amendment."

Reporters often talk to sources -- within government and outside it -- who provide information only after a promise of confidentiality. Investigators covet their testimony and their notes. For years, it was common to speak of an unwritten "reporters' privilege" that barred legal demands for journalists' information. The undefined "privilege" was rooted in the stern language of the First Amendment, which says that "Congress shall make no law ... abridging the freedom ... of the press."

During the civil-liberties crisis of the 1960s, federal prosecutors used grand juries against dissenters and drug users. In a 1972 case called Branzburg v. Hayes, the Supreme Court managed to muddle the issue so badly that, 40 years later, courts are still arguing about what the justices held.

Prosecutors going after the Black Panther Party (and a few stoners in Kentucky) demanded testimony and notes from reporters. The Court decided, 5-4, that the First Amendment did not protect the journalists. The majority opinion, by Justice Byron White, brushed aside the idea of a privilege: "[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." Justice Lewis F. Powell, the let's-all-just-get-along Sandra Day O'Connor of his day, supplied the crucial fifth vote, but wrote a separate opinion to suggest that there actually is a qualified privilege in some undefined circumstances. "[T]he courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection," he wrote.

Since Branzburg, federal courts have split over whether to apply White's broad denial or Powell's tentative acceptance of the privilege. Many judges believed that Powell's reasoning controlled, requiring a balancing test by a court before journalists or their records could be summoned. But in 2003, Judge Richard Posner of the Seventh Circuit wrote an influential opinion brushing that idea aside. The D.C. Circuit followed Posner's reasoning in the case of New York Times reporter Judith Miller. Miller was summoned to a federal grand jury probing whether Bush officials had leaked the identify of CIA case officer Valerie Plame. She refused to testify about her sources, and spent 85 days in jail.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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