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The Need for a Federal Reporter Shield Law Providing Absolute Protection Against Compelled Disclosure of News Sources and Information

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The Need for a Federal Reporter Shield Law Providing Absolute Protection Against Compelled Disclosure of News Sources and Information Trampling on the Fourth Estate: The Need for a Federal Reporter Shield Law Providing Absolute Protection Against Compelled Disclosure of News Sources and Information LESLIE SIEGEL* Disclose your sources or go to jail. That is the ultimatum being handed down with increasedand troublingfrequency by courts to journalistsacross the country. Although many states have enacted statutes that shield reporters from compelled disclosure of sources and information, those statutes offer varying degrees of protection. The result, therefore, is that whether a particularjournalist may be forced to reveal a source becomes merely an accident of geography. Adding to this air of uncertainty, the United States Supreme Court recently refused to reexamine the issue of reporterprivilege, letting stand a thirty- three-year-old decision that some lower courts interpret as allowing for a qualified reporter privilege and others read as refusing to recognize any sort ofprivilege at all. After an examination of state reportershield statutes andfederal case law, this Note concludes that the most direct and efficient way to protect journalistsfrom compelled disclosure of sources and information is through federal legislation. Although members of Congress have introduced bills providing a qualified reporterprivilege for journalists, this Note calls for the passage of a federal reporter shield law that grants an absolute privilege. This Note proposes a model statute, the Freedom of the Press Act, which would protect journalists in all media and all states against compelled disclosure of sources and information. Without an absolute federal shield in place, journalists may soon see key confidential sources dry upforfear of being unmasked; the media may self- censor to avoid facing subpoenas; reporters who decline to reveal their sources may end up behind bars; and the press may be seriously impeded in its quest to disseminatecritical information to the public. * J.D., The Ohio State University Moritz College of Law 2006 (expected); M.S., Columbia University, Graduate School of Journalism 1998; A.B. in Politics, Princeton University 1996. I would like to thank Professor Ric Simmons for his guidance and suggestions, and all of my journalist friends for inspiring me to write this Note. I offer a special thank you to my parents, Al and Louise Siegel, whose unconditional love and support have been the driving force behind every goal-academic or otherwise-that I have accomplished. OHIO STATE LA WJOURNAL [Vol. 67:469 1. INTRODUCTION At 3:10 p.m. on July 6, 2005, New York Times reporter Judith Miller was taken into custody and sent to jail for refusing to disclose the identity of a confidential news source to a grand jury.' The grand jury was investigating the illegal leak of covert Central Intelligence Agency (CIA) operative Valerie Plame's identity to several reporters, among them Time magazine's Matthew Cooper, who faced the same fate as Miller for his unwillingness to unmask his source.2 At the last minute, Cooper's source released him from his promise of confidentiality, allowing the reporter to cooperate in the leak investigation and avoid jail time.3 Miller, on the other hand, remained steadfast in her vow to keep the names of her sources confidential. As three court officers whisked her off to jail, Miller told the judge, "If journalists to guarantee confidentiality, then journalists cannot cannot be trusted 4 function and there cannot be a free press." A year and a half earlier, a similar scene unfolded in Rhode Island. Minutes after being held in contempt for refusing to divulge a confidential news source, reporter Jim Taricani spoke to the media outside the federal courthouse in Providence. "I never imagined that I would be put on trial and 5 face the prospect of going to jail simply for doing my job," he told fellow I Reporters Comm. for Freedom of the Press, Reporters and Federal Subpoenas, http://www.rcfp.org/shieldsandsubpoenas.html#plame (last visited Feb. 18, 2006). D.C. District Judge Thomas F. Hogan ordered that Miller remain incarcerated for contempt until she decided to divulge her source or until the grand jury term expired in October of 2005. Adam Liptak, Reporter Jailed After Refusing to Name Source, N.Y. TIMES, July 7, 2005, at Al. 2 Kelly Rayburn & James Bandler, Lawyer Argues Reporters Have a Right to Protect Their Sources, WALL ST. J., Dec. 9, 2004, at B2. For a further discussion of Miller's and Cooper's cases, see infra text accompanying notes 115-34. 3 Adam Liptak, For Time Reporter, Decision to Testify Came After Frenzied Last- Minute Calls, N.Y. TIMES, July 11, 2005, at A12. Just before Judge Hogan sentenced Miller and Cooper, Cooper announced, "A short time ago, in somewhat dramatic fashion, I received an express personal release from my source." Id. Time magazine had already turned over Cooper's notes to Special Prosecutor Patrick Fitzgerald after the United States Supreme Court refused to hear the reporters' case. See In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 965 (D.C. Cir. 2005), cert. denied, 125 S. Ct. 2977 (2005); see also Adam Liptak, Prosecutorin Leak Case Callsfor Reporters'Jailing,N.Y. TIMES, July 6, 2005, at A14. 4 Liptak, supra note 1. After eighty-five days in jail, Miller broke her silence, revealing to a grand jury that her source was Vice President Dick Cheney's Chief of Staff, I. Lewis "Scooter" Libby. Don Van Natta Jr. et al., The Miller Case: A Notebook, A Cause, a Jail Cell and a Deal, N.Y. TIMES, Oct. 16, 2005, at Al. 5 Jim Taricani Statement, Nov. 18, 2004, available at http://www.turntol0.com/news/3930128/detail.html. 2006] TRAMPLING ON THE FOURTHESTATE members of the media. The fifty-five-year-old investigative reporter6 for NBC affiliate WJAR-also a heart transplant recipient-was sentenced to six months of house arrest after being found in contempt for refusing to divulge a confidential news source. 7 "[T]he only reason that [a] prison sentence is not being imposed," U.S. District Court Judge Ernest C. Torres told Taricani, "is '8 out of concern for your health." Judge Torres ordered that Taricani's confinement conditions mirror those he would have faced if incarcerated: Taricani could not leave his North Kingstown home, except to visit his doctors; 9 he could not access the internet, or appear on radio or television; and he had to abide by restricted visitation hours. 10 Eleven days after sentencing, Taricani announced he would not appeal the sentence, citing health concerns, as well as the physical and emotional toll that the court battle had taken on him and his family. " Miller, Cooper, and Taricani are three reporters among a growing list of journalists being ordered to disclose news sources and information before 6 The words "reporter" and "journalist" are used interchangeably throughout this Note. 7 Turntol0.com, Judge Finds Taricani Guilty of CriminalContempt; Reporter Faces Up to Six Months in Prison, Nov. 18, 2005, http://www.turntol0.com/news/3929582/detail.html; see also In re Special Proceedings, 373 F.3d 37, 47 (lst Cir. 2004) (affirming district court's decision to grant a motion to compel Taricani to answer questions regarding his confidential source); In re Special Proceedings, 291 F. Supp. 2d 44, 60 (D.R.I. 2003) (granting special prosecutor's motion to compel Taricani to answer questions regarding his confidential source). 8 Transcript of Sentencing Hearing at 27, In re Special Proceeding, C.A. No. 01-47 (D.R.I. Dec. 9, 2004), available at http://www.rid.uscourts.gov/PDFS/transcripts/12092004_1- 01 MSCO047TSentencing.pdf. 9 Tracy Breton, Taricani Sentenced to Home Confinement, PROVIDENCE J.-BULL., Dec. 10, 2004, at Al, available at http://www.projo.com/trial/content/projo _2004121Oj imtI 0.2b2628.html. 10 Transcript of Sentencing Hearing, supra note 8, at 29. 11Reporters Comm. for Freedom of the Press, Reporter Will Not Appeal Criminal Contempt Conviction, Dec. 21, 2004, available at http://www.rcfp.org/news/2004/1221inresp.html. Taricani served four of his six months under house arrest, and was freed from home confinement on April 9, 2005, after Judge Torres granted the reporter's petition for early release. Order Granting Petition for Early Termination of Probation and Home Detention, In re Special Proceedings, Misc. No. 01- 47-T (D.R.I. Apr. 6, 2005), available at http://www.projo.com/extra/2004/taricani/20050406-termination.pdf (noting that Taricani had "fully complied" with the "letter and spirit of the conditions of his home confinement"); see also Tracy Breton, Judge Shortens Taricani's Time in Confinement, PROVIDENCE J.-BULL., Apr. 7, 2005, at Al. OHIO STATE LA WJOURNAL [Vol. 67:469 grand juries or in courtrooms. 12 Although thirty-one states and the District of Columbia have reporter shield laws, 13 these statutes create an inconsistent patchwork of protection for journalists who wish to keep promises of confidentiality to their sources. Furthermore, few, if any, of the states with statutory shields protect journalists whose work appears on the internet, 12 In addition to subpoenaing Miller and Cooper, Special Prosecutor Patrick Fitzgerald, who is leading the Plame leak investigation, issued subpoenas to Washington Post reporters Glenn Kessler and Walter Pincus, and NBC's Tim Russert. Lucy A. Dalglish, Subpoena Gallery, NEWS MEDIA & THE LAW, Fall 2004, at 6. CNN commentator and syndicated columnist Robert Novak, who was first to publish Plame's identity in July of 2000, refuses to say whether he has been subpoenaed. Id. The list of reporters receiving subpoenas continues: prosecutors subpoenaed four reporters in the trial of New York defense attorney Lynne Stewart, who is accused of defying court orders by publicizing her client's statements. Id.
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