I'm all for a shield law to protect journalists and their sources from government prosecutors. I hope Congress passes one. But I don't have lots of faith that the ideas under consideration in Congress or any law can protect journalists adequately.
This is one of those areas where custom carries more weight than statute, the custom being the general good sense of prosecutors not to go after reporters for their information. For the most part prosecutors -- and by that I mean everyone from county attorneys on up--have refrained from going after reporters, including the notable and obvious exception of the Obama Justice Department. Yes, there are cases where prosecutors have gone subpoena-happy, from the BALCO steroids case to the Aurora shooting to the CIA leak case, where I was caught up in the maelstrom. But, generally, prosecutors don't pursue reporters even when they can. This unspoken compact began to become undone during the Bush administration, and, of course, it has unraveled during the Obama years as the national-security state has expanded.
This is something I know a bit about, having been subpoenaed in the CIA leak case. In 2003, I wrote a piece for Time, where I covered the White House, about how Bush administration officials were trashing Valerie Plame, the CIA operative whose husband was sent by the agency to investigate claims that Saddam Hussein was seeking to purchase uranium from Africa. Leaking Plame's identity was potentially a crime, and I was threatened with imprisonment for contempt of court for not turning over my sources. The case went all the way to the Supreme Court where it was declined. I've described my experiences at some length here, and here.
The important thing from my case that's relevant to the current rash of subpoenas is twofold. First, it represents an all-too-familiar and dramatic escalation of federal intrusion into the work of journalism under the guise of national security. At a time of more or less permanent war, the federal government has shown little of its former hesitance to pursue journalists. The second point is that the government tends to win--not always, but pretty much.
Recently, the government got the Associated Press' phone records and they got James Rosen's private e-mails. In the end of the CIA leak case, the prosecutors heard from reporters including myself, Walter Pincus, Tim Russert, Robert Novak, Bob Woodward, Glenn Frankel, and Judith Miller. Each of us took our own path to the witness stand -- my sources offered permission to speak -- but no one was able to tell the prosecutor to screw off. We fought the law and the law won.
That's because the law is on the side of prosecutors. In 1972, the Supreme Court ruled in Branzburg v. Hayes that there's no constitutional right for reporters to protect their sources. The case involved a Kentucky reporter covering the marijuana trade. Prosecutors wanted to know what he knew. The ruling was a split decision, and Justice Lewis Powell's opinion had a degree of ambiguity that allowed First Amendment lawyers to dine out on it for many years.
Still, the ruling was the ruling. And it being the Woodward-and-Bernstein heyday when journalists commanded more respect, states responded by giving reporters a range of protections either through laws or judicial rulings. There was no push for a federal shield law like there is now, in part because First Amendment advocates, including the newspaper industry, saw it as a knave-like concession of the journalist's constitutional claim. Better to fight another day with the Supreme Court rather than accept a skimpy statute. For its part, the Nixon (!) Justice Department issued more-or-less reasonable guidelines for when prosecutors should subpoena journalists. When John Mitchell is the voice of reason, you're in trouble. (By the way, ironically, James Rosen has written a voluminous and interesting book on Mitchell. If you want to help him, that's surely one way.)
Here's the thing to keep in mind: Whether in Wichita or Washington, prosecutors did not use theBranzburg decision to go crazy subpoenaing reporters. That's not shocking if you think about it. Prosecutors are often aspiring politicians and they recognized in the early 1970s that getting into fights with people who buy ink by the barrel--to use the old and now quaint adage--was not a great way to get ahead. News organizations raised a stink and often didn't comply, altering the cost-benefit analysis. Again, I don't mean to suggest that this was some golden period for press freedom. There was more than enough business to keep my former attorneys, the great Floyd Abrams and Ted Olson, busy. But in general, reporters faced more of a threat from libel cases than they did government subpoenas.