This week is sort of the high holidays for media-law attorneys: Media Law Resource Center’s annual meetings, a communications law program at Practising Law Institute and several other events. There was a fascinating discussion Thursday at PLI on reporters’ privilege with several general counsels of major medial companies.
New York Times reporter James Risen, who the Fourth Circuit has ruled must identify a confidential source in the case of a former CIA agent suspected of being a leaker, should seek certiorari with the U.S. Supreme Court--otherwise he may have to go to jail to protect his unnamed source, said Lee Levine, a leading First Amendment lawyer with Levine Sullivan Koch & Schulz.
But Levine said he does not think that the U.S. Supreme Court would take the case.
If the U.S. Supreme Court takes the case, there could be five votes in favor of recognizing a qualified common law privilege for reporters’ confidential sources, Levine said. Justice Anthony Kennedy would be the key vote, he said.
Justice Stephen Breyer, who often votes unfavorably on First Amendment issues, might vote in favor of recognizing a qualified common law privilege because he favors balancing tests in his jurisprudence, Levine said.
David McCraw, vice president and assistant general counsel for The New York Times Company, said there will never be an ideal test case on reporters’ privilege and he fears the next test case would be brought by a "blogger in a bathrobe.”
Karen Kaiser, associate general counsel for The Associated Press, said the "time is now to bring these critical principles to the forefront."
Barbara Wall, vice president and senior associate general counsel for Gannett and who was part of the group who attended meetings with Attorney General Eric Holder after it was revealed that both Associated Press and Fox News had phone lines tapped by federal law enforcement without notice, said the federal prosecutors “felt, particularly with the Rosen subpoena, they felt they had to allege that Rosen was involved in criminal behavior.” Rosen was alleged in court papers to have broken the law as an aider, abettor and/or co-conspirator, but he was not charged.
The Department of Justice’s draft revised guidelines, which still have to be finalized, are an improvement, said Bruce Brown of the Reporters Committee for Freedom of the Press.
Most of the panelists favor the reporters shield bill pending in the U.S. Senate.
Kaiser said, that before prosecutors can access information from the media without notifying them ahead of time, the shield bill would require a judge to find that there is clear and convincing evidence that disclosure would be a threat to an ongoing criminal investigation.
The shield law "does eliminate clear prosecutorial overreach," Kaiser said.
Eve Burton, senior vice president and general counsel for The Hearst Corporation, was the sole contrarian on the panel in opposing the shield bill.
The privilege would not apply at all in the national security context, Burton said.
Separately, Burton said there is another issue with media companies moving their computer systems into the cloud.
Microsoft and AOL are willing to contract with media companies that they will always provide notice that the government has sought to access information about the media companies--unless there is a governmental order precluding disclosure, Burton said. But Google and Amazon are not, she said.
Google and Amazon want to retain the discretion not to have to disclose that there has been governmental access to media companies’ information, Burton said.
The result is that Hearst and other companies are not joining the cloud or taking their business elsewhere, Burton said.
Google and Microsoft and other tech companies are better at protecting from hackers than media companies are, but they are not willing to go to jail to protect their sources, Wall said. So the middle ground might be to have some computing functions on the cloud, but to keep e-mail in-house, she said.
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