In view of today’s reported statement by U.S. Attorney General Jeff Sessions that the Justice Department has seen a threefold increase in its leak investigations compared with the number that were ongoing at the end of the Obama Administration, several questions arise as to what if any protections journalists may have for their confidential sources.
Is there a shield from subpoenas in federal criminal cases?
No. In marked contrast with the judicial consensus concerning subpoenas in federal civil cases, if the government or a federal grand jury wants source or other unpublished information in a criminal investigation, the First Amendment is no shield law. The U.S. Supreme Court reached this conclusion 45 years ago in Branzburg v. Hayes, 408 US 665 (1972). It had the opportunity to revisit the issue in 2005 in connection with the Valerie Plame leak probes and the testimony sought from Matthew Cooper of Time Magazine and Judith Miller of the New York Times, but declined to do so. Accordingly several bills were introduced in Congress to add a statutory shield law to the U.S. Code. But progress stalled in reaction to the Wikileaks releases of sensitive government information and unresolved issues as to what kind of activity should be protected as journalism.
Meanwhile, if a journalist refuses to comply with a federal subpoena or grand jury inquiry demanding access to any information sought in a criminal investigation, or refuses to obey a court seeking such information in order to identify the source of a leak received in defiance of a gag order, the First Amendment will not protect him or her from a fine, jail time or both if cited for contempt.
Are there any cases illustrative of that hazard?
Yes, and some of them will be familiar to Californians. In August 2006, for example, in San Francisco a federal judge sentenced an independent video journalist to 18 months in jail (of which he served more than seven) to compel him to surrender to the U.S. Attorney out-takes shot at a civil disturbance. Another federal judge was about to order the same fate for two reporters for the San Francisco Chronicle who refused to name their source for a leak of grand jury information in the investigation of steroid use by professional athletes; the standoff was mooted only when the source identified himself.
The only situation that the Circuit Courts of Appeals have found to be exceptional—in declaring an overriding First Amendment protection from a federal grand jury subpoena—was in Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972). There the court concluded that a grand jury’s probing of the editorial processes of, and relationships maintained by, the official newspaper of the Black Panther party were more intrusive into constitutionally protected areas than was justified by their connection to the focus of the investigation—threats to the President’s life and potential interference with the armed forces.
What practical protection exists from federal subpoenas?
A number of national news organizations have responded to the risk of pressure to name confidential sources by creating—and publicizing —online “lockboxes” for tipsters, leakers and whistleblowers to use as anonymous depositories. But just as the Justice Department has shown itself willing to secretly access journalists’ phone records in pursuit of source identities, it apparently would not hesitate to digitally hack the lockboxes to see what has been leaked—and thus perhaps by whom. The most secure way to get revealing documentation to journalists may be the old-fashioned “snailmail” envelope sent courtesy of the U.S. Postal Service.
But journalists and their confidential sources get their best protection from the relatively narrow focus of grand jury investigations. That concentration on evidence of federal crime means that many if not most of the leaks the White House complains most about—making its internal workings and conflicts relatively transparent to the press and public—are simply not open to grand jury scrutiny because, while they may get people fired, they violate no law.