Free Flow of Misinformation

Yesterday, I linked to a Washington Post editorial endorsing H.R. 2102, a bill that would severely limit the obligation of journalists to testify in federal court, even if they have relevant evidence and even if that evidence has nothing to do with the identity of confidential sources. I also posted a previously unpublished op-ed piece that set forth some of the principal problems with the proposed legislation. Today let’s look closely at the arguments the Post presented for the bill.

MANY OF the stories that expose government malfeasance, sear the nation’s conscience, highlight violations of public trust or expose gross abuses of power come to light because people come forward to point journalists in the right direction or offer direct testimony on the condition that their names not be revealed. Protecting the identity of a source is a bedrock of American journalism.

Not exactly. Because “many” is so vague in this context, it’s probably fair to say that “many” excellent stories about government malfeasance are based on tips from anonymous sources. It would also be fair to say that journalists have traditionally exercised — sparingly — a prerogative not to reveal source identities in their published reports. But it is wrong to imply that a journalist’s promise of confidentiality has always trumped the citizen’s obligation to give evidence in court. Not only is that not a “bedrock of American journalism,” it is false. The established fact is that our free press has flourished for well over 200 years in the absence of any reporter’s privilege. As Justice White made clear in his thoroughly reasoned opinion in Branzburg v. Hayes, 408 U.S. 665, 685-86 (1972) , the common law did not recognize a privilege for reporters to withhold evidence in either criminal or civil actions, and in the modern era the privilege reporters now claim was not even advanced until 1958. Whatever the case for a shield statute may be, it certainly cannot be based on history, because the unbroken practice of the last 200 years is to the contrary.

Unfortunately, recent history has shown that some federal prosecutors and civil litigants do not value this flow of information as much as those of us in the media and the public do. In recent years, more than 40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases.

This is the bait and switch the big media conglomerates always use on this issue. You might think that the “more than 40 reporters” referred to here are all reporters who wrote some of the “many” stories exposing government malfeasance, but that would be incorrect. On the contrary, the cases in which reporters are “hauled into federal court” tend to be cases in which the reporter was used by his source to smear a private citizen without having to take responsibility for the smear. The Post doesn’t give a reference for its “more than 40” claim, but the Reporters Committee for Freedom of the Press keeps a running tally on its web site, and none of the cases listed for the last six years involved hard-hitting exposés about Abu Ghraib, secret CIA prisons, or secret NSA wiretaps. The list does include six subpoenas to reporters who passed along leaks that falsely accused scientist Wen Ho Lee of espionage; as well as thirteen subpoenas to reporters and new organizations who passed along leaks that falsely accused Dr. Steven Hatfill of being the anthrax murderer. The sources who fed these stories violated the Privacy Act — that is, they committed a crime — by leaking private information that destroyed the victims’ lives; but that is hardly the sort of anonymous sourcing the media companies want to put front and center when they’re lobbying for a new testimonial privilege. Thus, a more candid look at the record than the Post provides shows that the subpoenas of which the press complains are not generated by the “whistleblower” stories of which the press boasts. In other words, the anonymous sources who deserve protection generally don’t need it, and the sources who need protection generally don’t deserve it.

But don’t take a privacy lawyer’s word for it; here’s Glenn Greenwald in Salon, also commenting on the Post editorial:

If it were true that journalists used anonymous sources for these purposes — to “expose government malfeasance” and “gross abuses of power” — then a federal shield law would be important. But these days, at least on the level of the national political press, anonymity is used for those purposes in a tiny minority of cases. In the vast majority of instances, anonymity has a far different and far less noble purpose — to enable our most powerful political officials to disseminate pro-government claims, information and propaganda through the media without any accountability.

Anonymity is still critical for good investigative journalism. Without it, we would not know about NSA warrantless eavesdropping or CIA black sites or “rendition” programs and a whole slew of other illegal and destructive acts engaged in secretly by this administration. But generally speaking, [the Post‘s] noble depiction of anonymity is pure fiction. It is used far, far more often to enable government mischief and even criminality, not to expose it. And that changes the calculus for determining whether a law should be enacted shielding this practice from the reach of investigations.

And by the way: We already have a federal statute called the Whistleblower Protection Act. If it’s not strong enough to protect whistleblowers, then we should amend that statute to give genuine whistleblowers better protection; we should not give individual reporters the unfettered discretion to grant indiscriminate protection to all their sources — good, bad, or imaginary.

Back to the Post again:

While 49 states and the District of Columbia have shield laws or court decisions that protect the relationship between reporters and their sources, there is no statutory protection at the federal level.

Clearly, there are many states in which statutes or court decisions do excuse reporters from testifying in certain situations, but the Post‘s attempt to paint a picture of near unanimity is deeply misleading. The fact is that state law is all over the map on this subject. Some states provide absolute protection while others are much less generous to reporters; some include a public-interest balancing factor and others do not; some apply different standards depending on the nature of the case or the legal theory on which it is based. The states diverge so widely on this subject that no one even agrees on how many states we’re talking about. Yesterday’s editorial in the Post said it was 49; last night’s Post news story on the Judiciary Committee’s markup of the bill said it was 32, and this morning’s version of the same story in the Post says it really should be 33. If this is the “bedrock of American journalism,” we’re all in trouble.

And if we’re counting states in which the protection is by court decision rather than by statute, then it is disingenuous for the Post not to acknowledge that federal courts already excuse reporters from testifying in many situations. That’s right: Federal courts already let reporters off the hook when circumstances warrant it. But the statute now under consideration would let reporters off the hook in many cases in which the circumstances do not warrant it. The big push for a federal shield statute only began when reporters started to lose more and more of these cases in court. But that sinking won-loss record for the press isn’t the result of any decrease in judicial protection; it is the result of an increase in journalistic recklessness about anonymous sources.

A House bill sponsored by Rep. Rick Boucher (D-Va.) and Rep. Mike Pence (R-Ind.) would change that. The legislation would not offer an absolute privilege of non-disclosure to journalists. We don’t advocate such a shield — nor does The Washington Post Co. , which has joined other media companies to lobby Congress on behalf of the bill, due to be voted on today by the House Judiciary Committee.

Instead, H.R. 2102 would compel the disclosure of a confidential source’s identity in federal court under three discrete circumstances: “to prevent an act of terrorism against the United States or other significant specified harm to national security”; “to prevent imminent death or significant bodily harm”; and to identify a person who may have unlawfully revealed a business trade secret or disclosed private health information or “nonpublic personal information,” such as financial information.

The protection offered by H.R. 2102 is not absolute, but it is far from balanced and the exceptions are mostly window-dressing. For one thing, the privilege is entirely status-based; if you’re a reporter, you get special treatment in court. This is radically different from other legal privileges. For example, the attorney-client privilege does not apply just because the witness happens to be an attorney; it applies only to certain conversations (legal consultations) between certain people (attorneys and their clients). An analogous privilege for reporters and their sources would depend on what the source communicated and why – a “reporter-whistleblower privilege,” perhaps. But instead, the current legislation proposes a one-sided “reporter’s privilege” that would make it harder to get testimony from any journalist about anything, no matter the circumstances. The press is seeking (and the Post is endorsing) a privilege that covers cocktail-party chatter, while pretending it is somehow a nuanced and balanced measure that is necessary to protect national security whistleblowers.

As for the three “discrete circumstances” under which a reporter could be compelled to disclose a source’s identity, they may sound like they cover important contingencies, but in practice they would be useless. In the version endorsed by the Post, the government would have to prove in court that disclosure of a source identity was “necessary to prevent imminent and actual harm to national security,” or “necessary to prevent imminent death or significant bodily harm.” I’ve seen first-hand how the media companies interpret adjectives like “necessary” and “imminent” in these cases, and trust me, those words are worth 12-18 months of delay in the federal court system. [Note: According to today’s Post, this language was watered down before Committee approval yesterday, but the text is not yet available and in any event the Post‘s endorsement of the original version shows how extreme its position on this issue really is.] The third exception — for disclosures of trade secrets, personal medical information, and personal financial information — avoids some of this problematic vocabulary, but the three types of unlawful disclosures addressed here are far from the most damaging. If this bill became law, a reporter would have to disclose the name of a source who leaked a social security number, but not the name of a source who called someone a “person of interest” in a criminal investigation; to disclose the name of a source who leaked that John Doe was suffering from anthrax, but not the name of a source who leaked that John Doe may have sent anthrax through the mail. These distinctions are fundamentally arbitrary, and they would gut the Privacy Act of 1974.

Moreover, there are many, many cases in which the identity of the supposedly “confidential” source isn’t even a secret. I noted several months ago an instance in which the White House released a transcript of Vice President Cheney’s remarks to a group of reporters assembled on Air Force Two, but insisted on referring to the Vice President as a “senior administration official.” This “official” on Air Force Two referred to Vice President Cheney in the first person. This is supposed to be too secret for the judicial system? These sorts of open-air-yet-not-for-attribution briefings happen all the time. Some reporters say they dislike it, and some of them I believe. But they play along, because ultimately copy is more important to them than accountability. They can’t pretend otherwise now that it suits their legislative interests.

Overall, a federal court must determine “that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.” This strikes us as a reasonable balance.

As the text of the bill makes plain to anyone who reads it, this “public interest” test is an independent hurdle that must be satisfied in addition to one of the three exceptions already mentioned. In other words, unless I can fit my case within one of those exceptions, a court is not authorized to order disclosure even if the public interest clearly requires it.

Reporters should not be penalized for doing their jobs.

Please. No one is talking about penalizing reporters. The question is whether they need to give evidence of their sources’ misconduct when they have relevant information to give. The reporters who incur penalties, such as fines and even jail time, are not “penalized for doing their jobs,” they are penalized for refusing to give evidence like the rest of us.

Forcing [reporters] to divulge their sources without a compelling interest will slow the free flow of information to a trickle.

This is in some ways the keystone to the entire argument; it is what supports the pretense that H.R. 2102 has any benefit for the public as opposed to the press lobby. The media companies who are lobbying for H.R. 2102 claim that anonymity is absolutely essential to the free flow of information. But interestingly, they themselves do not buy this argument when the shoe is on the other foot. For example, if one were to read the Post‘s editorial online as I did, one would find directly below that editorial the opportunity to post a comment. Of course, there are rules that must be followed in order to ensure that all commentary is responsible, and the Post lets readers know what those rules are:

Your washingtonpost.com User ID, __________, will be displayed with your comment.

Comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain ‘signatures’ by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content you post.

[Emphasis mine.] Pretty tight ship, huh? Why do they think it’s important to display my User ID? And why won’t public debate “slow . . . to a trickle” if they remove all anonymous or pseudonymous comments? And what do they mean by that warning about being responsible for anything I post? Would they, for example, comply with a subpoena telling them the real name and address of the person with my User ID? Is it possible that the policies all go together? That the reason they print my User ID is so that I won’t be tempted to make “personal attacks” or post “other inappropriate comments or material”? What happened to anonymity as the “bedrock of American journalism”? Tough questions, I think. (If anyone from the Post wants to answer them here, I’ve got space.)

What the Post acknowledges in its comment guidelines is what plain common sense tells us: People who cannot be held accountable will often behave badly. USA Today founder Al Neuharth has even called anonymous sources “the root of evil in journalism.” As he succinctly puts it, “Most anonymous sources often tell more than they know. Reporters who are allowed to use such sources sometimes write more than they hear. Editors too often let them get away with it. Result: Fiction gets mixed with fact.” [Source: T. Gup, Nation of Secrets (2007), p. 156.]

This is the most fundamental problem with H.R. 2102 and all comparably broad shield statutes. Everyone is in favor of the free flow of information, but if reporters give their sources an up-front guarantee that they will never be held responsible for anything they say, it is misinformation that will flow freely. The press may be in favor of that, too — after all, it sells papers — but Congress won’t be doing the country any favors if it takes us down that road.

The truth is that everyone gets better with accountability — reporters and their sources just as much as government institutions and online commentators. We may well need anonymous sources, now and then, in order to enable the press to hold government accountable. But we also may need the possibility of court-ordered disclosure of anonymous sources, in order to enable the courts to hold both press and government accountable. The current system of case-by-case adjudication offers that kind of flexibility. Laws like H.R. 2102 don’t.

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2 Responses to “Free Flow of Misinformation”

  1. Rod Apfelbeck Says:

    I read elsewhere about the dissent in Branzburg:

    The dissenters suggested that when reporters are asked to break confidences before grand juries, the government should have to pass a three-part test:
    (1) “show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law;”
    (2) “demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and”
    (3) “demonstrate a compelling and overriding interest in the information.”

    Would this be a reasonable compromise?

  2. Mark Grannis Says:

    Surprisingly enough, Rod, the standard suggested by the Branzburg dissenters is basically the standard for disclosure in civil cases today. For example, in the recent decision by Judge Walton to compel five reporters to obey valid subpoenas to them from Steven Hatfill, the court expressly found that Dr. Hatfill had “demonstrated that he was the subject of leaks by the DOJ and the FBI”; that “the information sought is clearly central to his Privacy Act claims,” and that “he has exhausted all reasonable alternative means of acquiring the sources who leaked the information that is the subject of this litigation.”

    You may wonder how it could come to pass that the rule applied by federal courts would so closely resemble the position that lost in Branzburg rather than the position that won. It has much to do with the fact that Branzburg was 5-4 and one of the justices in the majority wrote a concurring opinion that seemed to water down his decisive vote. It also has much to do with the fact that Branzburg was a criminal case and most of the later cases were civil, which left the lower courts free to give Branzburg fairly narrow application. Watergate and the Pentagon Papers case almost certainly played a part as well, creating some wind at the backs of the very skillful media lawyers who turned a pretty emphatic Supreme Court rejection into the cornerstone of a whole body of law that is actually quite protective of the media even without federal legislation.

    So if the press already has protection, why are they pushing this legislation? Because the key issue is not the formulation of the standard but rather the situations to which it applies. The reason the press wants legislation on this subject is because it is widely recognized that they will nearly always lose illegal leak cases under any standard like the one above. As Judge Tatel recently said in the decision that sent Judy Miller to jail,

    “[W]hen the government seeks to punish a leak, a test focused on need and exhaustion will almost always be satisfied, leaving the reporter’s source unprotected regardless of the information’s importance to the public. The reason for this is obvious: Insofar as the confidential exchange of information leaves neither paper trail nor smoking gun, the great majority of leaks will likely be unprovable without evidence from either leaker or leakee.”

    This observation, which is clearly correct, has prompted media lawyers to look for other ways to justify their clients’ concealment of evidence the court system deems indispensable. That’s where the Free Flow of Information Act comes in.

    Thus, the real problem with the Free Flow legislation is not that it places too heavy a burden on litigants who need testimony from reporters. The real problem is that this legislation would categorically rule out any disclosure of confidential source information in anonymous smear cases. Those are civil cases; even though the leaks constitute crimes, the Department of Justice generally shows no interest in outing government leakers. Consequently, if the Free Flow bills passed, the media would certainly say these cases do not fit within the provisions of the law that apply to “criminal prosecutions or investigations.” The journalists who peddle this legislation thus appear to be submitting to the court’s authority whenever a crime is involved, but their submission is illusory because, contrary to all their rhetoric about how hard it is to get people to talk to them, they know that leakers are virtually never prosecuted by the government. (I guess we should now say, “Unless they lie about it under oath.”)

    There are people out there who think all leaks should be protected and none should be discouraged, but there are probably not many such people. Check out the comments that are posted beneath The Post‘s August 1 editorial if you want a taste of public opinion on this issue. Good heavens, not even David Broder wants to defend concealment of sources when the leaks constitute smears. So if the media advocates are merely honest on this issue, I am not too concerned about Congress passing a Free Flow of Information Act in anything like the current form. Unfortunately, the media advocates have not been honest on this issue; they all resort to the bait and switch I identified in the post above. They’re trying to protect not just the good leaks but the bad ones, so let them come clean and offer some justification for why the bad leaks should be protected. Then let’s consider the harm the bad leaks inflict, and we’ll see how many people support special protection for journalists to print rot like that.

    And another thing. I had lunch recently with a financial advisor who happened to mention in an entirely unrelated context that he always tells his clients that “nothing but a subpoena will make me divulge anything you tell me.” Why “nothing but a subpoena” instead of just “nothing”? Because despite the clear benefits of confidentiality in financial consultations, justice sometimes requires disclosure. My friend knows the law requires him to give evidence when the courts need it to do justice, so he doesn’t make promises to his clients that he can’t lawfully keep. That’s exactly what reporters should tell their sources. They know the law does not, and never has, permitted them to ignore subpoenas. If they promise their sources that they will ignore the subpoenas nonetheless, they are essentially placing themselves both above and against the law.


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