The De Facto Reporter's Privilege Imperiled

By
Christina Koningisor
April 17, 2018

Christina Koningisor is the First Amendment Fellow at The New York Times. The views in this piece are her own and not necessarily those of the Times. She is the author of “The De Facto Reporter’s Privilege,” published in March in the Yale Law Journal


Last August, Attorney General Jeff Sessions disclosed that the number of investigations into leaks of classified information had tripled under President Trump. He also announced the creation of an FBI unit dedicated to pursuing leakers. “Understand this,” warned Dan Coats, Director of National Intelligence, who joined Sessions at the news conference. “If you improperly disclose classified information, we will find you, we will investigate you, we will prosecute you to the fullest extent of the law.”

The message was clear. An increase in the number of leak investigations means an increased risk that a reporter will be compelled to reveal the identity of a confidential source. But that was not the most alarming part of Sessions’s remarks that day. Tucked in them was an even more chilling disclosure: the Department of Justice was in the process of “reviewing” the agency’s guidelines governing when and how it issues subpoenas to the press. It was another sign that the government—across all three branches—is slowly unraveling the overlapping web of informal protections that have long shielded the press.

Traditionally, judges have bent over backwards to ensure that members of the press who have refused to reveal a source would not end up in jail.

For centuries, members of the press have refused to reveal the identities of their confidential sources, even when compelled to do so by a court. In 1722, Benjamin Franklin’s brother James was imprisoned for a month for refusing to reveal the author of an article criticizing the British government. The tradition carries on to this day. “Our word is binding,” explains NPR’s journalism ethics handbook. “We would not want to reveal the identity of an anonymous source unless that person has consented to the disclosure.”

Yet the press’s ethical commitment to protecting confidential sources has long exceeded what the law allows. Virtually every state extends some form of protection to reporters who shield a confidential source, but there is no cross-cutting federal privilege. So when the federal government issues a subpoena to a member of the press, reporters have little legal recourse. In 1972, in Branzburg v. Hayes, the Supreme Court rejected the press’s argument that compelling reporters to reveal a confidential source violated the First Amendment. Since then, hundreds of bills to enact a legislative reporter’s privilege have been introduced in Congress. None have passed. Reporters enjoy little in the way of formal federal protection in this realm.

Paradoxically, few reporters in this country end up in jail for refusing to testify or surrender documents. While few formal legal protections exist today, all three branches of government have long worked to protect the press in other, less formal ways.

Traditionally, judges have bent over backwards to ensure that members of the press who have refused to reveal a source would not do serious time or even end up in jail. Judges have long declined to extend a formal testimonial shield to the press, but they have come up with all manner of legal solutions to protect the press, including imposing unusually light punishments when a reporter refuses to comply with a court order.

When a Baltimore Sun reporter in 1886 refused to reveal the identity of a confidential source, for example, the journalist spent the duration of his confinement in the sheriff’s home and received a bottle of champagne each night of his two-week detention. A newspaper reported that the journalist “spent the time pleasantly, receiving many calls and getting a good rest. He was congratulated right and left today upon his manliness and determination.”

More recently, in 1980, a federal district court fined CBS one dollar a day for refusing to comply with a subpoena to surrender unpublished video and audio tape. In their treatise on federal court procedure, Charles Wright and Arthur Miller observed that “one may suspect that some . . . charade is being enacted when a wealthy television network that refuses to produce material needed by a criminal defendant on grounds of privilege is subjected to civil contempt with a sanction of a $1 per day fine.”

The judicial branch is not alone in this effort. The legislative branch has also long declined to punish reporters who refuse to reveal to it the identity of anonymous sources. In 1920, for example, a reporter refused to disclose to a Senate subcommittee the identity of his confidential informant. The chairman of the subcommittee relented. When reporters promised confidentiality to a source, the senator reasoned, they should be permitted to make good on that pledge. “We do not want to ask anybody to break the faith.”

Even the executive branch has played a critical role in protecting the press.

The edges of this informal shield are fraying.

Which brings us back to the guidelines of the Department of Justice. First issued in 1970, the guidelines impose a variety of restrictions on the government’s ability to issue subpoenas to the press. Prosecutors must ensure that they have exhausted all other sources, and a high-ranking DOJ official must approve the subpoena. After recommending in 2013 that the guidelines be revised to provide further protection to the press, Attorney General Eric Holder emphasized that the guidelines “safeguard the essential role of the free press in fostering government accountability and an open society.” The cumulative effect of these guidelines is to reduce conflict between the press and the government, by reducing the number of subpoenas issued in the first place.

Few formal legal protections exist at the federal level, in other words, but this overlapping mix of informal protections emanating from all three branches of government—a kind of de facto reporter’s privilege—has long protected the press. It has worked remarkably well. As David McCraw, the Deputy General Counsel of The New York Times, and a co-author explained, in the wake of the 1971 Pentagon Papers decision, the government and the press struck “an unspoken bargain of mutual restraint in which the press embraced an ethos of responsibility and the government generally treated the leaks as an accepted, if not fully condoned, part of modern governance.” In 2004, for example, the Times learned of a secret National Security Agency program to monitor certain phone calls into the United States from abroad. After consulting with the government, the Times held the story for more than a year. When the story finally went to press, the government did not seek a prior restraint and no government employee was ever prosecuted for leaking classified information.

But the ground is now shifting. Cracks in the de facto privilege first began to show in the wake of September 11, 2001, and accelerated with the disruptive impact of new entities like WikiLeaks. Judges now seem more willing to impose lengthier terms of imprisonment on reporters who refuse to reveal a source and less willing to read the existing case law to permit some form of judicial protection. But the real threat now extends from the executive branch. While the Obama administration aggressively pursued leak prosecutions, President Trump’s hostility toward the press is unprecedented in its prominence and vitriol. “The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) is not my enemy, it is the enemy of the American people. SICK!” Trump tweeted a month after his inauguration. “The Washington Post is far more fiction than fact. Story after story is made up garbage—more like a poorly written novel than good reporting,” began one of his tweets just a week ago.

Greater threats to the press may still lie ahead. Reality Winner, a federal contractor charged with leaking information to The Intercept in violation of the Espionage Act, is scheduled to stand trial in October. And today, former FBI agent Terry James Albury pled guilty to charges related to leaking classified information to the press. From what Attorney General Sessions has said, these charges mark the beginning of a coming wave of leak prosecutions.

The de facto reporter’s privilege has done enormous work in the past to protect reporters and serve American democracy. Shielding the press helps ensure that critical sources—those who can provide crucial information about the functioning of government to the American public—continue to step forward. But the edges of this informal shield are fraying. Those with the power to remedy these gaps in protection—judges and legislators, each with the authority to craft a formal federal shield—must keep a protective eye on the press. They must carefully monitor the strength and availability of this de facto web of protections.

If things get worse—if the DOJ dramatically scales back the guidelines or significantly increases the number of subpoenas to the press, for example—judges and legislators must step in. The only recourse, should the informal protections buckle under the weight of this administration and its exertion of executive power, is for the other branches to extend formal protections. The democratic system depends on an informed electorate, which requires a robust press. Protecting reporters—and by extension, their sources—allows the American people to hold their government to account.