Wednesday, October 19, 2005

BACKGROUND: Floyd Abrams testimony from July on shield law

JULY 20, 2005

Chairman Specter and Members of the Committee:

It is a great honor for me to have the opportunity to appear once again
before this Committee. I.m especially pleased to have the opportunity to
do so in order to support the adoption of a federal shield law. One of the
advantages of being .of a certain age,. as they say, is that you remember
things. Or that you think you do.

Now that I find myself routinely described by the Washington Post as a
.veteran. defender of the First Amendment and in the context of
representing Judith Miller (who I will visit in the Alexandria Detention
Center this afternoon) and having represented Matt Cooper and Time for a
time, I look back occasionally on some of the things I and my colleagues
urged upon the Supreme Court in 1972 in a brief, amici curiae, primarily
drafted by the inimitable Yale Law Professor Alexander Bickel.

The case, of course, was Branzburg v. Hayes, 408 U.S. 665 (1972), and
there are three paragraphs from our brief with which I would like to begin
my testimony today. The public.s right to know is not satisfied by news
media which act as conveyor belts for handouts and releases, and as
stationary eye- 2- witnesses. It is satisfied only if reports can
undertake independent, objective investigations.

There is not even a surface paradox in the proposition, as it might
somewhat mischievously be put, that in order to safeguard a public right
to receive information it is necessary to secure to reporters a right to
withhold information. Clearly the purpose of protecting the reporter from
disclosing the identity of a news source is to enable him to obtain and
publish information which would not otherwise be forthcoming. So the
reporter should be given a right to withhold some information.the identity
of the source.because in the circumstances, that right is the necessary
condition of his obtaining and publishing any information at all.

Information other than the identity of the source may also need to be
withheld in order to protect that identity. Obviously, something a
reporter learned in confidence may give a clue to his source, or indeed
pinpoint it. That may be the very reason why the source imposed an
obligation of confidence on the reporter. Yet off-the-record information
obtained in confidence is of the utmost importance to the performance of
the reporter.s function. It very frequently constitutes the background
that enables him to report intelligently.

It affords leads to publishable news, and understanding of past and future
events. News reporting in the United States would be devastatingly
impoverished if the countless off-the-record and background contacts
maintained by reporters with news sources were cut off. Moreover, even
where information other than the identity of the source would be unlikely
to enable anyone to trace that identity, the information may sometimes
need to be withheld, if given in confidence, in order to make it possible
for the reporter to maintain access to the source, and thus obtain other,
publishable news.

It is true of numerous news sources that if they cannot talk freely, and
partly in off-the-record confidence, they will not talk at all, or speak
only in handouts and releases. That is the prism through which I ask this
Committee to approach this subject. Every word that Professor Bickel
wrote.and he personally wrote every word I just quoted to even
truer today. Of course, some articles based upon confidential sources
since our brief in Branzburg was drafted, have become the stuff of
journalistic legend -- reporting on the Pentagon Papers and the Watergate
scandal, for example.but by far the greater use of such information is
reflected in day-to-day reporting on the widest range of topics.

In the three months after the attack on the United States on September 11,
2003, for example, Ms. Miller and a colleague wrote 78 articles published
in The New York Times that .contained information from confidential
sources on a range of issues including: (1) financing and support of Al
Qaeda provided from sources in Pakistan, Saudi Arabia, and the United Arab
Emirates; (2) cooperation between Al Qaeda and Pakistani intelligence
prior to September 11, 2001; (3) the U.S. government.s preparedness for
the attacks of September 11, 2001; (4) the U.S. government.s efforts to
combat Al Qaeda in Afghanistan; (5) the proposed internal reorganization
of the FBI; (6) the existence of weapons of mass destruction in Iraq; (7)
the spread of anthrax and resulting U.S. government investigations.. New
York Times Co. v. Gonzalez, No. 04 Civ. 7677 (RWS), 2005 WL 427911
(S.D.N.Y. Feb. 24, 2005).

All that information is now being sought by the United States in an
ongoing effort to obtain telephone records of the New York Times for use
by a federal grand jury. As we meet today, the ability of journalists to
gather news is imperiled. How could it not be? For all its ambiguity (and
more than one lawyer steeped in First Amendment law has made a living over
the past 33 years purporting to divine just what Mr. Justice Powell had in
mind when he wrote his critical, yet all but indecipherable concurring
opinion in the case), Branzburg itself has been interpreted by many courts
(although by no means all) to foreclose any First Amendment protection for
confidential sources in the federal grand jury context, so long as the
inquiry was in good faith.

That was the holding in the case involving both Judy Miller and Matt
Cooper; it is not the way I would read Branzburg in light of Justice
Powell.s none-too-scrutable opinion, not the way a number of Courts of
Appeal have read it, but it is undoubtedly one plausible reading of the
case. And it is that reading that was the first building block in the
opinion of the Court of Appeals for the District of Columbia that led Matt
Cooper to the edge of jail and Judy Miller to her present and continuing

Why must that be so? Why should federal law offer no protection for
journalists who seek to protect their confidential sources when 49 of the
50 states provide considerable.often all but How can the
United States provide no protection when countries such as France, Germany
and Austria provide full protection and nations ranging from Japan to
Argentina and Mozambique to New Zealand provide a great deal of

Listen to the language of the European Court of Justice on this topic:
Protection of journalistic sources is one of the basic conditions for
press freedom, as is reflected in the laws and the professional codes of
-5- conduct in a number of Contracting States and is affirmed in several
international instruments on journalistic freedoms.

Without such protection, sources may be deterred from assisting the press
in informing the public on matters of public interest. As a result the
vital public watchdog role of the press may be undermined and the ability
of the press to provide accurate and reliable information may be adversely

Having regard to the importance of the protection of journalistic sources
for press freedom in a democratic society and the potentially chilling
effect an order of source disclosure has on the exercise of that freedom,
such a measure cannot be compatible with Article 10 of the Convention
unless it is justified by an overriding requirement in the public
interest. Goodwin v. United Kingdom, (1996) 22 E.H.R.R. 123.

A particular issue has arisen in the Judy Miller case which I would like
to address. I have little doubt that the .leak. disclosed by columnist
Robert Novak.the identification of the name of a CIA .operative,. as he
put it.was unworthy of any journalist. In fact, Mr. Novak is entitled, in
my view, to no kudos for his journalistic contribution that day, only our

But the protection of journalists. sources should not be made dependent on
whether we think a particular story serves or disserves the public. Nor
should it turn on whether a particular source means to advance public
discourse or to poison it. These are subjective matters as to which our
response may be affected by our social views, even our political ones.
They should not provide the basis for granting or withholding a privilege
established by law.

In my view, when a journalist speaks to her sources and promises them
confidentiality, she should keep her word.period. And she should be
protected by law in doing just that except in the most extraordinary
circumstances. the sort referred to in the revised Free Flow of
Information Act drafted by Senator Lugar and Representative Pence which
permits an order requiring disclosure of a source when all non-media
sources have been exhausted and disclosure is .necessary to prevent
imminent and actual harm to the national security..

When Branzburg was decided, it was less than clear to many observers
whether a federal shield law was needed. For most of the 33 years that
followed, journalists were held to be protected by the First Amendment
when they sought to protect their sources from being disclosed. But that
has changed radically in recent years and even more so in recent days.

We have a genuine crisis before us. In the last year and a half, more than
70 journalists and news organizations have been embroiled in disputes with
federal prosecutors and other litigants seeking to discover unpublished
information; dozens have been asked to reveal their confidential sources;
some are or were virtually at the entrance to jail; and Judy Miller, not
far from here, sits in a cell not many floors removed from that of
Zacarias Moussaoui.

It is time to adopt a federal shield law.

Comments: Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?