By Mickey H. Osterreicher, Esq.
BUFFALO, NY (August 7) – In three separate cases, one in New York and two in San Francisco, the need for a federal shield law to protect the press is more apparent than ever.
On August 1, Joshua Wolf, a freelance journalist and blogger, was jailed for contempt after refusing to comply with federal prosecutors’ demands that he turn over video he took during a demonstration in San Francisco last summer. He has also refused to testify before the grand jury hearing accusations that crimes were committed at the protest.
On the same day in New York the 2nd U.S. Circuit Court of Appeals ruled that the telephone records of New York Times' reporters are not protected by the First Amendment or a common law privilege from being subpoenaed.
In California federal authorities are trying to compel two San Francisco Chronicle reporters to reveal who supplied them with secret grand jury testimony in their investigation of steroid abuse in major league baseball.
The first San Francisco case is disturbing because state and federal prosecutors apparently joined forces in circumventing California’s comprehensive state shield law, claiming that the burning of a police car and the injury to a police officer during a demonstration protesting the “Group of 8” meeting of world economic leaders fall under federal purview because the San Francisco Police Department uses federal funds to purchase its police vehicles. In almost all cases such crimes would be considered a violation of state law.
Had prosecutors convened a state grand jury, Wolf would have been able to claim the reporter’s privilege not to be compelled to testify or provide evidence gathered in his capacity as a journalist unless the government made a showing that the information he possessed was sufficiently important to the case at hand and that it was unavailable from other sources. California’s shield law also protects a journalist from being held in contempt of court for refusing to disclose either unpublished information or the source of any information that was gathered for news purposes, whether the source is confidential or not. An exception can arise where a criminal defendant’s federal constitutional right to a fair trial would be violated without a reporter’s testimony.
Having a federal grand jury hear this matter has the effect of making all those privileges moot because no such statute exists on the federal level although there is a bill pending in Congress that would allow some level of protection for journalists from being compelled to testify about their newsgathering activities under threat of contempt charges. Even if the “Free Flow of Information Act of 2006,” introduced in May, were law it might not afford Wolf any additional protection because in its present form it still allows a judge to demand source information “in cases where a reporter was an eyewitness to a crime, in cases where the guilt or innocence of a criminal is in question and in cases where the information is critical to prevent death or bodily harm.” Additionally, judges may also override the law in cases where they deem a national security exception and those related to classified information.
The New York case brings together some of the usual suspects in this issue. Once again, U.S. Attorney for the Northern District of Illinois, Patrick J. Fitzgerald, and New York Times reporter, Judith Miller, are at odds over what information the government is entitled to. The last time these two tangled in the Valerie Plame matter, Miller spent 85 days in jail on contempt charges for refusing to reveal who in the government had leaked the CIA agent’s name to the press. This time Fitzpatrick is seeking telephone records of possible calls made in connection with the investigation of two Islamic foundations suspected of terrorist links. The government alleges that just prior to a planned raid in December 2001, two reporters from The New York Times called the fundraising groups looking for a comment, thereby jeopardizing the safety of federal officers and compromising the searches, which were being conducted as part of a probe into the funding of terrorist activities.
Similar to the Plame matter a federal grand jury was empanelled to determine who, if anyone, made unauthorized disclosures to the press of the investigations. Such disclosure by a government agent can constitute a violation of federal criminal law “prohibiting communication of national defense information to persons not entitled to receive it” as well as the felony of obstruction of justice. In its papers the government maintains that none of its agents were authorized to disclose information regarding plans to block assets or to search the premises of the two Islamic groups prior to the execution of those actions.
In both federal grand jury investigations what the government is seeking is the cooperation of the press in its criminal prosecution of others. In Wolf’s case, prosecutors are trying to determine the identity and actions of those participating in a demonstration is which they believe certain crimes were committed. In the case involving the Times the U.S. Attorney is in search of the identity of the reporters’ sources by obtaining the phone records held by the telephone companies providing phone services to the reporters. This is being done in order to prosecute those sources for the unauthorized disclosures. The other San Francisco case also involves unauthorized disclosures – but this time it is of the grand jury transcript itself.
During the preceding district court case of The New York Times Co. v. Gonzales, the federal judge for the Southern District of New York granted summary judgment in favor of the Times, holding that the disclosure of the third-party telephone records was barred by both First Amendment and common law privilege found under Federal Rule of Evidence 501. He also stated that even if the privileges were qualified (not absolute, which he found they were), the government had not presented enough evidence to overcome those privileges. In hearing the appeal of that decision a divided 2nd Circuit declined to decide the issue of whether a common law privilege exists for reporters’ phone records, but stated that “any such privilege would be overcome on the present facts” in the case. On the other issue the court held that “no First Amendment protection is available to the Times on these facts in light of the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972).”
What may be more remarkable is that the dissent, written by Second Circuit Judge, Robert Sack, is longer than the opinion itself and raises the question in a matter such as this where a First Amendment qualified privilege may exist – who decides if the government has met its burden in piercing that privilege? Is it the prosecutor or the court? The dissent noted that while the majority affirmed the right of journalists to protect the identity of their sources held by third-parties because “without such protection, prosecutors, limited only by their own self-restraint, could obtain records that identify journalists’ confidential sources in gross and virtually at will. Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers do to reach theirs — by use of clandestine cell phones and meetings in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate.”
Judge Sack went on to state that it is the prosecutor’s burden, not his prerogative to show that he has met the burden. Rather than being given deference by the court that allows for perfunctory statements by the prosecution, they should require solid evidence. “More fundamentally still, the Court today reaffirms the role of federal courts in mediating between the interests of law enforcement in obtaining information to assist their discovery and prosecution of violations of federal criminal law, and the interests of the press in maintaining source-confidentiality for the purpose of gathering information for possible public dissemination. For the question at the heart of this appeal is not so much whether there is protection for the identity of reporters’ sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome,” he wrote.
During a press conference held Saturday in San Francisco in support of these journalists, Tony Overman, president of the National Press Photographers Association, which represents 10,000 journalists around the world, stated: "This has a chilling effect on First Amendment rights. When news sources believe that statements or actions observed or reported by journalists find their way into the hands of police or prosecutors, those sources will be less willing – or flat-out afraid – to cooperate with the media.”
“It sends a shiver down the spine of anyone considering talking to the media, and will result in an atmosphere where the public’s need to know is suppressed by the government’s desire for token investigations and effortless prosecutions,” Overman said.
NPPA Leads Protest Against Jailing Of Videographer.
Mickey H. Osterreicher, Esq., has been a member of the NPPA since 1972. He is the chair of the NPPA Media Government Relations Committee and is also a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for over thirty years in Buffalo, NY, where he now practices law.
