May the Source Be With You:  The Debate About Journalists and a Federal Shield Law

This might be the law you want – then again, it might not.  It was no Jedi mind trick.  When a powerhouse ABA Annual Meeting panel came together to examine the pros and cons of a federal shield law for journalists, they determined that qualified privilege is the best outcome, but how to get there could be complicated.

“There are a lot of moving parts in these bills,” said Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois, during the program, May the Source Be With You: The Debate Over Journalists and a Federal Shield Law.  “The devil is in the details.”

Fitzgerald spoke of the need to balance the free flow of information with the interest of justice.

Currently 36 states and the District of Columbia have formal “shield laws” for journalists.  Other states, except for Wyoming, use a case-by-case evaluation, based on previous court decisions.  The U.S. House and Senate each have a proposed version of what is called “The Free Flow of Information Act of 2009.”

The principal reason often cited for the need of a federal shield law is the number of subpoenas issued to reporters.  Fitzgerald said that the number of federal subpoenas is small compared to the confidential leaks that come out in the media every day. 

A subpoena is “a measure of last resort,” said Fitzgerald.  “A prosecutor has to exhaust all other methods before a subpoena is issued.”

Fellow panelist Judge Reggie B. Walton of the U.S. District Court for the District of Columbia echoed that sentiment.

“I have the greatest respect for the media and for what reporters do…. I don’t take lightly the decisions I have to make when I ask reporters for information,” said Walton.

Walton was the judge in the case of bioweapons expert Steven Hatfill – the man the U.S. Department of Justice named as a “person of interest” in its investigation of the 2001 anthrax attacks on members of Congress and the media.  Hatfill needed to prove that the leaks of his name to the media were willful and intentional.  Judge Walton ordered reporters from several media outlets to provide information about their sources.  Most of them did so.  Eventually, the case against the government was settled for nearly $6 million.

“Dr. Hatfill would not have received justice had there been a federal shield law in place,” said Walton.

Judge Walton pointed out that journalists need to examine the motives of their sources before they decide to publish.

“I was troubled,” said Walton of the Hatfill case, “that there was not further investigation into the leaks that were given to reporters to assess the sources and the reason why they were trying to give out that information.”

 Journalist Abdon Pallasch, the political reporter for the Chicago Sun-Times, said privilege for journalists should be qualified.  “Even I don’t want blanket immunity,” he said.

And, in this era of bloggers, freelancers and contributors, the definition of “journalist” will need closer examination on the part of lawmakers to determine the extent of the possible immunity offered.