- The Washington Times - Monday, June 19, 2006

The federal newsmen’s privilege statute pending before the Senate Judiciary Committee — the Free Flow of Information Act of 2006 (FFIA) — is nonsense on stilts.

In Branzburg v. Hayes (1972), the U.S. Supreme Court denied that the First Amendment crowned the press with a right to withhold confidential sources from grand juries. Writing for the majority, Justice Byron White doubted the press would be hobbled in its organized scrutiny or criticism of government if promises of confidentiality occasionally bowed to criminal justice. Time has vindicated White’s skepticism.

Investigative journalism has flourished during the 34 years that have elapsed since Branzburg with no federal newsmen’s privilege law. Stories exposing Watergate, Lancegate; Iran-Contra, the Anita Hill affidavit, Monicagate, warrantless domestic surveillance and data mining; and, secret CIA prisons and interrogation centers abroad are emblematic. In other words, ironclad promises of confidentiality are not the lifeblood of a free press.

Judith Miller, a New York Times reporter, spent months in jail for refusing to disclose sources of her knowledge that Valerie Plame was a CIA operative in the criminal investigation of Scooter Libby. Several other reporters have been ordered to reveal confidential sources in Wen Ho Lee’s Privacy Act suit against federal officials. Yet neither precedent has occasioned a dwindling of confidential sources. Media stories pivoting on leaked confidential or sensitive information remain common.

It might be said a chilling effect on news reporting is self-evident if there is any possibility confidentiality will be broken. Sources would not seek confidentiality unless it was a material factor in their willingness to talk. But the syllogism is unpersuasive. In any given case, the probability a confidential source will be disclosed is microscopic. Government officials shy from coercion against the media to cultivate good will and avoid antagonism. The prospect of media retaliation with a disparaging Page One story or editorial concentrates their minds wonderfully.

Neither Carl Bernstein nor Robert Woodward was summoned to reveal the identity of “Deep Throat,” i.e., Mark Felt. Neither Nina Tottenberg nor Timothy Phelps was ordered to disclose the congressional source for the Anita Hill affidavit. The New York Times reporters who disclosed President Bush’s secret domestic surveillance program in contravention of the Foreign Intelligence Surveillance Act have not been compelled to reveal their sources. Neither has The Washington Post’s reporter who wrote about the CIA’s secret prisons or interrogation centers abroad.

Sources are also generally driven to confide in the press for reasons that outweigh the possible embarrassment of disclosure. Take Scooter Libby’s conversations with Judith Miller about Mrs. Plame and Iraq’s suspected weapons of mass destruction. As Vice President Richard Cheney’s chief of staff, his ambition to destroy the credibility of Mrs. Plame’s husband, Ambassador Joseph Wilson, easily trumped worries that his identity would be revealed. Indeed, Mr. Libby ultimately agreed to release Miss Miller from honoring any promise or understanding of confidentiality. Presidential adviser Karl Rove similarly waived any putative right to confidentiality with the reporters with whom he spoke about Mrs. Plame.

If a newsmen’s privilege threatened no harm, enacting FFIA would be innocuous. But as the proposed legislation acknowledges, every invocation of the privilege shortchanges the administration of criminal or civil justice. It denies relevant information to grand juries empowered to determine whether a crime has been committed, to petit juries deciding on guilt or innocence, and to civil juries deciding on defamation or invasion of privacy claims. The FFIA seeks to mitigate newsmen’s privilege injustices with exceptions. But they are unworkable.

In criminal investigations or prosecutions, for instance, to overcome the privilege the government or the defendant must prove by clear and convincing evidence, among other things, that the information sought is “critical to the investigation or prosecution [or defense], particularly with respect to directly establishing guilt or innocence.”

But what is persuasive to one juror is commonly trivial in the eyes of another. A prosecutor thus seeks to assemble the widest range of relevant and reliable evidence to convince all jurors beyond a reasonable doubt of the guilt of the accused. A defendant, on the other hand, values all relevant evidence that might undermine the prosecution’s case in the mind of any juror. Indeed, FFIA is probably unconstitutional to the extent it denies the accused exculpatory evidence protected by newsmen’s privilege.

Moreover, criticality pivots on what other evidence has been adduced. It could never be sensibly decided until both the prosecution and defense have ended their presentations. And even then, there would be no intellectually coherent standard for a judge to determine if the information sought satisfies FFIA’s criticality benchmark for any juror other than the standard of relevance applicable to all evidence.

FFIA would slow justice from lead-footed to glacial with no concession to the shortness of life. Every invocation of newsmen’s privilege in a criminal prosecution would engender sprawling auxiliary litigation — a literal trial within a trial — over whether alternative sources of the information sought had been exhausted; whether the information was peripheral, nonessential or would entail a large volume of unpublished material; whether the purpose of the information was to verify published information or its accuracy; and, whether the importance to society of convicting the defendant of the crime charged should defeat an assumed chilling effect on news reporting from exposing a confidential source.

In sum, a federal newsmen’s privilege statute would be wrongheaded. Instead, the media should be directing its energies to confining the Espionage Act of 1917 to classified information that directly, immediately, and irreparably damages the national security of the United States. But that is next week’s column.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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