by Jason M. Shepard. El Paso, TX: LFB Scholarly Publishing, 2011. 334pp. Cloth $80.00, ISBN: 9781593324643. Paper $35.00, ISBN: 9781593326357.
Reviewed by Bess Boever and Patrick Schmidt, Department of Political Science, Macalester College.
Among the issues arising in President Obama’s second term, at least one simply echoes a recurring challenge for American law. The pursuit by the Department of Justice of information leaks, leading to subpoenas for journalists’ phone records and a search warrant for email, replays perfectly the unresolved problem of how to balance the interests in effective administration and the rule of law with the interests of transparency and press freedom. Given the complexity of modern governance, the use of confidential sources by investigative journalists may seem a necessary and vital method of gaining access to information. The public interest in critique of public officials and discussion of matters of public interest might suffer without protection of anonymous sources. Yet, a right for journalists to refuse to identity their sources, in the face of a legal investigation into leaking, frustrates efforts to preserve what (at least in some cases) is a legitimate state interest in secrecy. Most modern Presidents, not only President Obama, have grappled with the implications of this tension.
In this light, Jason Shepard’s Privileging the Press benefits not so much from good timing but its selection of a timeless problem. If society has tasked journalists with the responsibility of keeping citizens informed about our public officials, and a promise of confidential to journalists’ sources is a beneficial or even necessary part of that work, what protections should journalists receive from subpoenas asking them to testify? Shepard’s work seeks to examine the connections between the legal and ethical development of standards surrounding the respect for confidential sources. By providing a historical perspective on the question, along with numerous contemporary case studies, Shepard most importantly demonstrates how the rise of journalism ethics as a part of the wider professionalism movement in the American media prefigured public acceptance of the interest in protection of sources confidentiality. In an account that opens up new levels of appreciation for the multi-faceted nature of the problem, Shepard aims to show how the journalists’ privilege then found its way — haltingly and unevenly — into legislative and judicial arenas.
The book divides eight chapters across three parts. The first part, with three chapters, introduces the conceptual vocabulary and numerous case studies. In his prefatory remarks, Shepard relays that he had a substantial career as an investigative journalist in Madison, Wisconsin before beginning this study as a doctoral dissertation, and the first part of the book reflects both aspects of that biographical journey. Chapter 1, introducing the “journalist-subpoena problem” and several conceptual frameworks for analyzing the ethical and First Amendment implications, approaches the issue as a quest for a solution: what are the values served by the protection for confidential sources and how can those be maximized? Answered within journalism ethics, the problem requires balancing the benefit of confidential sources, particularly the quality of information available to the journalist (and indeed even the tip-off to a story), against the risk that confidential sources might diminish the credibility of the story when journalists promises of confidentiality are given too frequently or without good reason. From a more legal-philosophical perspective, Shepard links this problem to the ideas of First Amendment theorists Alexander Meiklejohn and Vincent Blasi, from which one can develop an argument for the desirability of a privilege for journalists. The life of this project as a dissertation is most in evidence in these discussions, though Shepard’s experience as a journalist has given him an appreciated measure of clarity.
Chapters 2 and 3 make concrete the journalist-subpoena problem through a variety of modern case studies. Based in part on interviews, these well researched case studies invite the reader to consider the decision points on all sides of the disputes. Chapter 2 offers case studies chosen from three different fact patterns, which complicates the task of identifying the public interest. For many, the pursuit of leaks from grand jury investigations (such as the leak of information related to the BALCO/steroids case) may trigger different instincts than private suits under the Privacy Act seeking to identify the source of government leaks about private citizens. These are different again from recent cases against bloggers who seek to protect their sources, which raise the question of whether the freedom of the press depends on a highly institutionalized media/press, with the protections of editors and professional ethics. Chapter 3 focuses singularly on the Valerie Plame/Judith Miller episode, invoking the weightiness and urgency of the journalist-subpoena problem by introducing the element of national security threats. To Shepard, the Plame case resulted in dangerous precedent, for prosecutors have been emboldened to pursue journalists with confidence that they will succeed. In the telling of the journalists’ stories across these chapters, one can find in Shepard’s biography the source of a certain sympathy, as he highlights the deeply held commitments of the journalists which led them to accept the martyrdom of jail time rather than revealing their sources of information.
The Plame case hints that the recent trend in journalist-subpoena cases has been moving away from the protection of confidential sources. Part 2 (chapters 4 through 7) takes a historical turn in order to capture the ebb and flow of the journalistic privilege. For many, the most well-known landmark in this history is the Supreme Court’s decision in Branzburg v. Hayes (1972). For some readers, this part of the book standing alone would be enough, as Shepard’s study richly contextualizes the case with a century of developments preceding that dispute and now four decades of activity following it. There is much to learn here. Chapter 4, surveying the wide ground from the colonial period to the mid-twentieth century, examines the emergence of an ethical imperative to protect sources. From the start, journalism as a profession has grown in legitimacy and strength by developing the codes of ethics that now give courts such quandaries. A right to anonymous speech developed at a time when there remained fear of persecution from colonial authorities, and newspapers (most famously, that of James Franklin, brother of Benjamin) defended the identity of citizens who wrote anonymous letters. By the middle of the nineteenth century, cases threatening journalists began to appear that match the form of today’s controversies, and although the reaction to the press’ ethical imperatives appeared hostile, in time sympathy increased. Although legislation protecting journalists appeared at the state level, federal legislation stalled.
Chapters 5 and 6 then take up the story with the episodes that represent the critical period in Shepard’s narrative: modern First Amendment-based litigation culminating in Branzburg and congressional consideration of a “shield law” in the wake of that landmark. Branzburg’s 5-4 decision, seemingly rejecting a right for journalists to duck grand jury subpoenas, has elicited much discussion particularly because Justice Powell’s concurrence appears to recognize some privilege while leaving the question open to case-by-case evolution in lower courts. Landing in the midst of tensions between President Nixon and the press, the decision invited a legislative response, and for three years Congress deliberated. Shepard’s account emphasizes how the problems that plagued both ethicists and jurists—including whether a privilege is qualified or absolute, and, to whom does it apply ‒ also divided the legislators. Though no law emerged, it wasn’t for lack of support or a patron. The problem, as it had been for the Court, was the difficulty of capturing the closely divided question in a general policy. Shepard’s Chapter 7 then rounds out the second part of the book, thematically as well as chronologically, by examining the rise of a federal court protection of a journalist’s privilege, until an influential decision by Judge Richard Posner in 2003 turned the interpretation of Branzburg’s case-by-case approach into a tide against any privilege at all.
Though Shepard devotes half of his book to the historical developments, it was not written as a stand-alone account. He is clearly a cheerleader for the privilege throughout, but Shepard saves his more normative posture for Part 3’s sole chapter. In Chapter 8, Shepard tackles the unresolved issues and the future of the journalist-subpoena problem. The biggest concern, given the 21st century context in which journalists now perform their duties, perhaps remains the question of “who is a journalist?” Shepard gestures to this issue in earlier chapters, but here expands consideration of how the Internet will continue to expand as a primary site of journalistic inquiry. Using the analytical foundation from Chapter 1, he argues plausibly that bloggers “do not present insurmountable problems to the future of the privilege” (p.286). The possibility of a federal shield law appeared to brighten during Obama’s first term, and with that hope dead, Shepard calls out for a resolution by federal appellate courts. Still, Shepard was a journalist. What began as an empirical proposition—that journalism ethics found its way into law—in this chapter becomes an imperative: for the law to echo the balanced, qualified immunity that journalism ethics counsels, and for journalists “to articulate standards of conduct in responding to subpoenas” (p.287), which may then provide the framework for the next stage of legal development.
By interweaving the ethical and legal developments, in Privileging the Press Shepard exposes himself to all the risks of dividing one’s focus. Shepard warned that the journalist-subpoena problem has been puzzled over “from a legal doctrinal perspective, [but] problems of ethical practice have garnered little perspective” (pp.xv). Yet analyses of ethics and professional practice comprise a very small portion of the text. By the same token, despite the original interviews and analysis of legal decisions, this book falls short as a work of legal history. The tension in the direction of the book is most reflected in the uneven parts of the volume. But Shepard’s ambition in taking on the two disciplines of law and professional ethics has its rewards. It has generated a wealth of historic detail and ready case studies that will serve well scholars or teachers of freedom of the press. By ably demonstrating the thorny nature of the problem, and showing how consistently it has endured in the United States, Shepard has richly contextualized an issue that is more often raised through a single case in the classroom (Branzburg) or a contemporaneous controversy involving a subpoena seeking a journalist’s sources.
Branzburg v. Hayes 408 U.S. 665 (1972)
Copyright 2013 by the Authors, Bess Boever and Patrick Schmidt.