March 17, 2008
The Media Shield Law
Posted by Gordon Smith

Since writing a law review comment on the free speech rights of public employees, I have shied away from scholarly engagement with the First Amendment, preferring more circumscribed fields of inquiry ... like fiduciary duty! Anyway, I was interested to read about the so-called media shield law in the NYT, partly because the topic is intrinsically interesting and partly because my future colleague, RonNell Andersen Jones, is working in the area. Indeed, RonNell is cited in the story:

Federal judges began offering leeway to reporters as well in civil litigation and criminal trials, so long as the information sought was not critical to the government's or plaintiff's case and was available elsewhere. At times, they protected journalists from having to disclose unpublished, nonconfidential material.

''By a stroke of genius, media attorneys were able to turn what was actually a loss for the press in 1972 into a qualified privilege for 30-plus years,'' said University of Arizona law professor RonNell Andersen Jones. ''There is now an unsettled feeling among members of the press about whether this carefully constructed house of cards is going to be blown down.''

Jones has come up with figures in a soon-to-be-released survey that indicate a rise in federal subpoenas following highly publicized media losses in recent years. Those defeats, she says, have emboldened more lawyers to subpoena journalists.


Her survey, which got responses from 761 news organizations, found 21 federal subpoenas seeking names of confidential sources in 2006 and an additional 13 seeking material other than a source's name that was received on condition of anonymity.

Those numbers are substantially higher than the 19 subpoenas since 1992 cited by the Justice Department when arguing that a federal shield bill is unnecessary. That count includes only subpoenas by department prosecutors who want reporters to disclose sources' identities to grand juries. The tally does not include civil lawsuits, cases involving special prosecutors or trial subpoenas by federal prosecutors seeking confirmation of material already published in news stories.

If this subject interests you, keep an eye out for that "soon-to-be-released survey," which RonNell tells me is nearly complete.

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