Running head: FEDERAL SHIELD LAWS NECESSARY TO RESTORE 1
C ourse Title: Freedom of Speech
Course Identification: 45007
Instructor: Dr. James Trebing
Course Completed: Spring 2015
Assignment Title: Federal Shield Laws Necessary to Restore Democracy
Assignment Project Description: This assignment was a ten-page research paper on any First
Amendment issue that contained citations from at least five supporting articles. There was ample room for creative freedom as long as it fulfilled the required criteria. The focus was finding a narrow topic and answering the broader questions specific to that topic. The paper had to include a timeline of all relevant court cases in order to examine the evolution of judicial thought as well as discuss the current precedent on the issue.
Reflection: What was most interesting to me was the lack of support for a reporter’s privilege from the government. The constitution does support a reporter’s privilege; however, it is open for interpretation and unfortunately, it does not favor the reporter. It is shocking that the
Supreme Court has refused to review cases involving reporters that will not reveal their sources.
That is why the flimsy precedent set in 1970s is still the law. I provided a timeline of cases dating back to the Revolutionary War to demonstrate that the government and the media have long been at odds. Many reporters tolerated jail to protect the anyonmity of their sources. I learned that the founding fathers were adamant about the government never having control over the media. The government wants to control the flow of information by threatening the confidentiality of reporter’s sources. I do not think I would make any changes to this assignment because I spent an enormous amount of time perfecting it. I included it in this portfolio because it is critical information that every American citizen should understand.

FEDERAL SHIELD LAWS NECESSARY TO RESTORE
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Running head: FEDERAL SHIELD LAWS NECESSARY TO RESTORE
Federal Shield Laws Necessary
To Restore Democracy
Kristina Kelley
Kent State University
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FEDERAL SHIELD LAWS NECESSARY TO RESTORE
Federal Shield Laws Necessary to Restore Democracy
This paper will explore the turbulent relationship between the press and the government;
4 examine why state shield laws are insufficient; how federal shield laws strengthen democracy.
Included is a timeline of relevant court cases that correspond with the topic focus.
For generations, journalists have debated on whether or not the First Amendment offers any protection for the press against involuntary pressure to reveal the identity of their sources.
The very first known example of reporter rebellion occurred during the time of the American
Revolution. John Peter Zenger, publisher of the New York Weekly Journal faced charges of seditious libel for his paper’s unsigned columns critical of New York’s colonial Governor
William Cosby (Belt, 2010). Lucky for him, Andrew Hamilton was his lawyer and he convinced the jury that Zenger had a “duty to protect the source of the criticism” because it had the potential to affect every free man that lives under British government on the main of America
(Knox, 2005).
The right to a free press is the fundamental idea that the right to publish, gather and disseminate information to the public is central to the First Amendment and critical to sustaining the operational health of the constitutional republic (Smith, 2014). The government strongly maintains the fair administration of justice is superior under the Constitution to the freedom of the press (Knox, 2005).

FEDERAL SHIELD LAWS NECESSARY TO RESTORE
Journalists depend on informants for providing them with the inside scoop; usually it is
5 contingent upon the journalist’s ability to secure the sources trust. These confidential relationships are critical between journalists and sources, and are fundamental to gathering as well as disseminating the news. The journalist privilege protects both the source of information and the information itself (Swinton, 2006).
There are professions that mandate confidentiality otherwise the job cannot be completed.
A doctor needs a patient; an attorney needs a client; and a journalist needs a source. Although, the journalists privilege lacks the ethical and contractual foundations of the attorney-client privilege it is evident the press enters into the same fiduciary relationship as attorneys and their clients (Swinton, 2006). The attorney-client relationship receives much respect; however, there is a general lack of recognition for the journalist privilege. However, the journalist privilege is the only one ordained by the constitution. Just as the attorney-client privilege is not only restricted to criminal defendants that are presumed innocent, the role of the journalist privilege cannot only exist in situations where the public interest will be served (Kirtley, 2006). In order for the journalist privilege to operate successfully, it must belong wholly to the journalist and not the source.
American government and the press have been engaged in a battle spanning several centuries. The first actual documented case of a journalist facing punishment for protecting their source’s identity occurred in 1848. This case involved, New York Herald reporter John Nugent, and the United States Senate. The United States Senate jailed Nugent after he remained tight lipped about the identity of his source which, leaked details of the Treaty of Guadalupe-Hidalgo, that brought the United states and Mexican war to a close. The Senate committee investigating the source of the leak confined Nungent inside of the Capital Building. The Senate bullied the

FEDERAL SHIELD LAWS NECESSARY TO RESTORE reporter to identify the source of the information, but he staunchly refused only reassuring them
6 that it was not from the Senator or a Senate officer. After a month, they released Nugent due to poor health; however, the Senate had failed their task and the leak was not exposed (Belt, 2010).
Even all the way back in 1848, the government disrespected the Constitution by behaving arrogantly as if it were beneath them to honor ones constitutional rights. Every section of government should lead by gleaming example and be fair in adhering to constitutional standards.
However, the government of 1848 as well as the government in office now, pretends they are in alignment with the Constitution. Our forefathers established these guidelines allowing room for interpretation by the United States judicial system. The dilemma arises from the differing perspectives creating opposing interpretations. However, the measure of any interpretation essentially has to be democracy.
The previous case is a redundant theme in the history of the American government; the formula remains the same and only the year’s change. The details about the treaty that ended the
Mexican American War were imminent to becoming public. The government threw a hissy fit because the leak stole their thunder. The ulterior purpose compelling a reporter to give up his source was motivated by a blend of power and ego.
The government delivers subpoenas, aiming to intimidate the press into disclosing their sources; threatening punishment for non- compliance. The government is not omnipotent, but wants to be; therefore, it infuriates them when a reporter refuses to bow down to their demands.
More often than not First Amendment rights pale in comparison to vilifying situations deemed worthy by government. There is no criteria ascertained for superseding the Constitution; it is just how the government conducts business. They developed a vague excuse to function as an allpurpose scapegoat and to format all their activities under. For example, “national security

FEDERAL SHIELD LAWS NECESSARY TO RESTORE reasons” is the vague but highly effective jive that the government uses when they need to gain
7 clearance to violate the constitution or break the law. Due to the sensitive nature of terrorism, when issues of national security are at risk, no one usually calls them out on it or questions their true agenda. These self-serving tendencies of government demonstrate a willingness to scorn constitutional rights on a whim to favor their own agenda.
The conflict between the government and the press is born out of two distinctly different schools of thought. The government operates in the political sphere where attributes of wealth, power and, and corruption guide the decision making process. They make and implement binding choices on the disbursement of resources, the sharing of benefits and burdens, and supervision of disagreements. They have the power to control and direct the behavior of those in society (Giordano, 2014-2015)
Although the press does not embody the same tasks as the government does, the press connects to society by reporting, examining, and analyzing all that the government encompasses.
The press informs society on the impact that government decisions have on individual’s lives.
The press has an inherent duty to society to forbid any section of government to mislead the people. The press informs society by using simplified language; therefore, it is more comprehensible than the ambiguous and vague terminology of the government. Knowledge is power and the press has the power to change the attitudes, opinions, and behaviors of those in society. The government and the press both are in positions to affect the masses but their fuel is supplied unrelated sources. The press concentrates on revealing information while the government focuses on concealing information; therefore, they have conflicting agendas.
Defending the job of the press is critical because the press is essential for the healthy functioning of a democratic society. The concept of democracy focuses on citizens securing

FEDERAL SHIELD LAWS NECESSARY TO RESTORE freedom from an oppressive government. The founding fathers outlined a specific formula for
8 sustaining democracy; a successful democracy requires the government to remain powerless over the press. Protecting the press ensures their ability to continue investigating and revealing government activities to the people. The press persists in searching for truth with the same fervor that the government meddles with it (Knox, 2005). Exposing the identity of informants and whistle blowers may have serious blowback effects such as as losing their jobs and government harassment. These sources of information will dry up thereby crushing future opportunities for social change. Preventing the free flow of information will stunt the growth of democracy.
Freedom of the press is essential for a prospering free society. New York Senator
Thomas C Desmond spoke true words when he said, “Democracy without a free press is no guarantee of freedom (Giordano, 2014-2015).” In 1896, Maryland enacted the first state shield law offering journalists protection in certain circumstances from disclosing the source of their information (Belt, 2010).
It was the middle of the 20 th
century before the courts finally considered any possibility that the Constitution may grant special privileges for journalists to protect their sources (Knox,
2005). In 1957, columnist Mary Torre published information that actress Judy Garland considered, false and defamatory. Garland suspected the allegedly false material was from network executive at CBS and attempted to force Torre to reveal the informant’s identity. Torres declared a societal interest in “assuring a free and unrestricted flow of news to the public” should compel this court to hold that the identity of a confidential news source is protected by at least a qualified privilege.” (Knox, 2005) The trial judge held her in contempt and ordered her
10 days jail time but permitted her to stay free pending appeal (Belt, 2010). On appeal, Torre

FEDERAL SHIELD LAWS NECESSARY TO RESTORE claimed she was constitutionally entitled to protect her source. Compelling a news reporter to
9 disclose a confidential source is instituting a barrier between the media and their sources; therefore, restricting the dissemination of news violates First Amendment assurances (Knox,
2005).
Second Circuit Judge Potter Stewart rejected all Torres’s arguments although he gave a small concession positing for certain circumstances that qualify Amendment privilege for journalists in defending their sources. Judge Stewart argued “But freedom of the press, as precious, and vital though to a free society, it is not absolute (Knox, 2005). Stewart also pointedly remarked on the interest society has in keeping order and determining the outcome of disputes in courts of law and any “privileges of the press cannot supersede this duty (Knox,
2005)”.
In light of the sour relations shared between the press and the government, the states have demonstrated an overpowering show of support for the press: to date, there are 49 states and the
District of Columbia that agree on the principle behind the protection. The states have enacted shield laws that vary in amounts of protection afforded to the members of the press, their sources, and their unpublished notes (Knox, 2005). Most states accept a qualified, not absolute privilege for journalists. State shield laws: define who is a “journalist”; define the types of information protected; conduct a balancing test on how to overcome privilege. State shield laws offer specific protection that confirms it in writing but specificity can backfire. Democracy is slowly morphing into a tyrannical government. What good is democracy in the hands of dictators?
It is past the hour for a capable, sturdy, and consistent shield law. To restore democracy to its original definition it is urgent and necessary to approve and implement the amended Senate

FEDERAL SHIELD LAWS NECESSARY TO RESTORE
Free Flow of Information Act (FFOIA). The purpose of the FFOIA is to forbid a federal entity
10 or employee of the executive branch, administration agency, or federal government from compelling a covered person to testify or produce information related to an act of journalism
(Giordano 2014-2015). The goal of legislation focuses on striking a balance between the rights of journalists to protect their sources, the needs of law enforcement and the publics right to know issues of local, state, national, and international importance.
The qualified privilege in the FFOIA, in both versions of the Bill, lists specific instances when the privilege is void:
1) alternative sources have been exhausted
2) the testimony or document sought is critical to the investigation, prosecution, or defense of a crime or the successful completion of a non-criminal matter
3) disclosure of an information source’s identity is necessary to prevent an act of terrorism, harm to national security, imminent death, significant bodily harm or to identify a person who has disclosed a trade secret, individually identifiable health information, certain nonpublic personal information
4) the public interest in compelling disclosure of the information or document outweighs the public interest in gathering or disseminating news or information
In the situations listed above, the protections in the act do not apply, and the journalist will be forced to hand over the secret information (Giordano, 2014-2015). In the event of a leak, which is disclosing unauthorized information, the court has the authority to obtain the disclosure of the source to intervene to prevent an act of terrorism or significant harm to national security
(Giordano, 2014-2015). This legislation would not protect any observations by the journalist, nor criminal conduct by the journalist. The protections also do not extend to any instance that

FEDERAL SHIELD LAWS NECESSARY TO RESTORE the disclosure of information would be reasonably necessary to prevent, stop, or mitigate a specific case of death. The power of this act is exclusive to the Federal government.
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Another argument that has sprung up out of the FFOIA is defining who qualifies as a
“covered person” or a “covered journalist”. A journalist, reporter, or any member of the press is considered a “ covered person” as a person who, for financial gain or livelihood, is engaged in journalism. The difficulty with shield laws and Freedom of Information laws is governments, ignore, or rewrite them in the name of national security or personal privacy. Tamper proof laws need implemented to safeguard the press against governmental pressures forcing them to compel information (Giordano, 2014-2015).
For 15 years, Garland v. Torre set the precedent on this issue. During this time Federal and State courts relied on the determination that journalists could not protect sources based on some idea of constitutional privilege. The other views on the case overlooked Justice Stewart’s idea of a balancing test and it did not reemerge until 1972 the landmark case Branzburg v.
Hayes.
The case Branzburg v. Hayes illustrates just how clever law enforcement is; without prior knowledge of the illegal activity reported in the story, the grand jury demanded to know what members of a community were smoking marijuana. The United States Supreme Court ruled 5-4 that there is no First Amendment privilege allowing journalists to keep source identities secret in some circumstances. The Supreme Court reasoned: Privilege would force courts to determine who is a “journalist” and privilege would ultimately congest the courtroom (Giordano, 2014-2015). Justice Powell’s concurrence: “The
Court still available to journalists if information sought is irrelevant or does not serve the legitimate need of law enforcement.” This was favored on a case-by-case approach.

FEDERAL SHIELD LAWS NECESSARY TO RESTORE
The Stewart dissent: Journalists should not be annexed by law enforcement. Forcing the
12 disclosure of sources would interfere with the flow of information to the public. Justice Stewart presented his 3-part test:
1) Is the information relevant?
2) Is there a compelling need for the information?
3) Is it available elsewhere?
Justice White speaking for himself and four other justices merely reiterated the rights that journalist were already afforded such as: no intrusions on speech or assembly, no prior restraint or restriction on what the press may publish, and no command for press to publish what it prefers to withhold (Knox, 2005). White also depicted several scenarios where the press should not receive special treatment due to First Amendment matters, such as not receiving permission to go to Cuba in order to manage the return of free flow of information from that country, or not gaining special access to crime scenes at where access to the general public is prohibited (Knox,
2005).
What the Branzburg ruling boiled down to was: The said right to privilege should be judged on its facts by the discovering of a proper balance between the freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. It was the most acknowledgment ever given by the Court pertaining to the rights of the press since this crusade has begun. However, the framework was not structurally sound and the inability to establish an ironclad precedent did not advance the industry's crusade for absolute immunity
(Knox, 2005).
Two recent cases involving journalists and sources were both denied by the Supreme
Court. In the Valerie Plame case, Plame had tried to sue the Bush administration for leaking her

FEDERAL SHIELD LAWS NECESSARY TO RESTORE
13 covert CIA status to the media and they refused to review the case. This is a fine example of the government officials abusing their power for political purposes without fear of repercussion.
The most recent case involves New York Times reporter James Risen who was subpoenaed by the justice department. Risens book “State of War” provided details of a botched CIA mission.
For the last seven years, Risen mounted legal battle against government demands that he reveal his secret source of information that gave him the inside scoop on a CIA plan to undermine
Iran’s nuclear program. The Supreme Court declined to take this case as well, which left Risen without any type of protection against the government demands that he identify source (Swinton,
2006).
The controversy over whether reporters should be compelled to reveal information or endure a punishment of jail time is symptomatic of a dramatic change in the judiciary’s view of the role of the press in contemporary American society (Kirtley, 2006). The decisions of the
Supreme Court over the past forty years have conveyed a sort of reluctant affection, even a reverence, for the annoying, contentious press. Reporters that cover the judicial system often report on events that drive judges batty (Kirtley, 2006). In the past, Judges reflected a superhuman ability to tolerate the press and with much chagrin deliver decisions supporting these inherent principals (Kirtlry, 2006).
A gridlock has press and the Government locking head. A new precedent cannot be set due to the Court’s unwillingness to review cases involving journalists and sources. This is not just about journalists and sources but also more about democracy and freedom. The manner in which the Court displays such predetermined bias is a sheer travesty of justice.
The freedom of the press is the lifeblood of democracy and democracy is the lifeblood of
America. In order for democracy to survive, tyrannical acts of the government must cease.

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References
Belt, G. (2010) . Jailed and Subpoened Journalists. Retrieved.com/hottopics/ from:
14 www.lexisnexis/lineacademic
Giordano, A. (2014-2015). Protecting the FreeFlow of Information:Federal Shield Laws in the
Kirtley, J. (2006). The Twenty-Ninth AnnualLaw Review Symposium
“
Would you be a Source?
Reporter Privilege in the Post 911 World. Retreived from:www.lexisnexis.com/hottopics/lineacademic
Digital Age. Retrieved from: www.lexisnexis.com/hottopics/linacademic
Knox, L. (2005). The Reporters Privilege: The Necessity of a Federal Shield Law Thirty Years
After Branzburg.
Retrieved from: www.lexisnexis.com/hottopics/linacademic
Swinton, N. (2006)
Privileging a Privilege: Should the Reporter’s Privilege Enjoy the Same
Respect as the Attorney- Client Privilege?
Retreived from:www.lexisnexis.com/hottopics/linacademic