Protecting the Cloak and Dagger with an Illusory Shield: How the Proposed Free Flow of Information Act Falls Short

Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press. (1) I. INTRODUCTION II. ABRACADABRA: THE JOURNALISTS' PRIVILEGE FROM BRANZBURG TO PRESENT A. Branzburg and Its Aftermath B. First Amendment Martyrs or Reporters "Mak[ing] Good News out of Bad Practice"? 1. Vanessa Leggett 2. Judith Miller 3. Josh Wolf C. A Reawakened Push for a Federal Shield Law: the Evolution of the Free Flow of Information Act 1. Modern Shield Legislation: Attempts of the 108th and 109th Congresses 2. Developments Since the 109th Congress III. NOT A SHIELD TO TAKE INTO BATTLE A. Vanessa Leggett B. Judith Miller C. Josh Wolf D. Back to the Drawing Board ... Again? IV. CONCLUSION I. INTRODUCTION Cautiously communicating through flower pots and red flags, Bob Woodward would signal that he desired a meeting with Deep Throat. (2) A Washington Post journalist, Woodward would meet Deep Throat on the bottom level of an underground garage at 2 o'clock in the morning. (3) There, Deep Throat provided information to Woodward under a promise of confidentiality--that Woodward could use Deep Throat's information under the condition that his identity remain a secret and he was never quoted. (4) The vital information that Deep Throat confidentially provided helped unravel President Nixon's administration's role in the Watergate scandal. (5) For more than thirty years, until he revealed himself in 2005, (6) Deep Throat's identity remained one of the greatest mysteries in U.S. politics. In retrospect, Woodward got off fairly easily. He did not have to respond to a federal subpoena seeking the identity of his confidential source. Nor did he have to spend time in jail to protect Deep Throat's identity. Alongside his partner, Carl Bemstein, Woodward told the public a revolutionary story about corruption and deceit among the highest ranks of American government, a story made possible by Deep Throat--the most famous secret source in American history. Of course, not all journalists have Woodward's luck. Journalists are subpoenaed in both state and federal courts to reveal a variety of documents, including their confidential sources, outtakes, notes, and eyewitness testimony. (7) In a 2006 Freedom of Information request, the Criminal Division of the U.S. Department of Justice said that "approximately 65 requests for [federal] media subpoenas have been approved by the Attorney General since 2001." (8) When subpoenaed, oftentimes, the journalists who write the headlines will make the headlines. In 2003, five prominent reporters (9) were subpoenaed by Wen Ho Lee, a former government scientist, to discover the names of government employees who, in violation of the Privacy Act, (10) leaked his personal information to the reporters. (11) While the government investigated Lee for providing nuclear secrets to the Chinese, (12) the reporters wrote articles about him, which he claimed, caused him financial loss, injury to his reputation, and physical and emotional distress. (13) The federal district judge ordered the reporters to comply with the subpoena. (14) Similarly, in 2008, a district judge affirmed the contempt of USA Today reporter, Toni Locy, for refusing to reveal the names of her sources in the Department of Justice and the FBI. (15) The sources leaked information to her, also in violation of the Privacy Act, about former Army scientist Steven Hatfill, who the federal government criminally investigated for mailing anthrax in the fall of 2001. (16) Until Locy revealed her sources, she faced fines starting at $500 a day for the first week, $1,000 a day for the next week, and $5,000 a day for the next. …