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To the Editor:

Gabriel Schoenfeld’s argument that Congress should not create a legal privilege under which journalists could shield their sources seriously misconceives the issue [“Why Journalists Are Not Above the Law,” February].

At the core of Mr. Schoenfeld’s case is his assertion that Justice Byron White was right to reject a First Amendment-based privilege in the Supreme Court’s 1972 decision in Branzburg v. Hayes, and that the same reasoning that justified White’s conclusion also justifies the rejection of a legislatively enacted privilege. But this is simply wrong. Whatever one thinks of the Court’s five-to-four decision in Branz-burg, its reasoning has almost no bearing on a statutory privilege.

Constitutional law sets a minimum baseline for the protection of individual liberties. It does not define the ceiling of such liberties. That a particular practice or policy does not violate the Constitution does not mean that it is good policy. This is evident in an endless list of laws that go far beyond constitutional requirements in supporting individual rights, ranging from the Civil Rights Act of 1964 to legislative restrictions on certain surveillance practices, tax exemptions for religious organizations, and regulations of the electoral process.

To justify its decision in Branzburg, the Court relied on two important First Amendment doctrines, neither of which is relevant to the issue of federal legislation. Indeed, that is why, despite Branzburg, 49 states and the District of Columbia have felt comfortable recognizing a journalist-source privilege.

First, the Supreme Court has traditionally been reluctant to invalidate a law merely because it has an incidental effect on First Amendment freedoms. Laws that directly regulate expression (e.g., “No one may distribute leaflets at the mall”) are the central concern of the First Amendment. Laws that only incidentally affect free expression (e.g., a speed limit preventing someone from getting to a demonstration on time) will almost never violate the First Amendment. To avoid intractable and ad-hoc linedrawing, the Court simply presumes that laws of general application are constitutional, even as applied to speakers and journalists. Predictably, this was the principle invoked in Branzburg.

Although this may be a sound reason for the Court to be wary of constitutionalizing a strong journalist-source privilege, it has no relevance in the legislative context. Courts proceed on the basis of precedent, and they are quite sensitive to the dangers of “slippery slopes.” Legislation, however, properly considers problems “one step at a time.” For the Court to recognize a journalist-source privilege but not, for example, a privilege of journalists to engage in wiretapping would pose a serious challenge to the judicial process. But for Congress to address the privilege issue without fretting over journalistic wiretapping is simply not a problem.

Another of the Court’s concerns in Branzburg was that recognition of a journalist-source privilege would require it to decide who exactly qualifies as a member of the press. To see this question decided by the courts would fly in the face of more than 200 years of constitutional wisdom. But, again, this kind of constraint is much more manageable in the context of legislation. Government often treats different speakers and publishers differently. (Which reporters are allowed to attend a White House press briefing, to be embedded with the military? Broadcasting is regulated, but print journalism is not. And so on.) Differentiation among different elements of the media is constitutional, as long as it is not based on viewpoint or any other invidious consideration, and as long as the differentiation is reasonable.

Thus, even though the Court is rightly reluctant to define “the press” for purposes of the First Amendment, it would grant Congress considerable deference in deciding who, as a matter of sound public policy, should be covered by a journalist-source privilege. Indeed, this task has not proved to be a serious problem in all the locales where such a privilege has already been enacted.

In sum, the very weaknesses of the judicial process that make it difficult for a court to address this problem as a constitutional matter are precisely the strengths of Congress to address it as a legislative matter.

Geoffrey R. Stone
University of Chicago
Chicago, Illinois

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To the Editor:

Contrary to Gabriel Schoenfeld, we need a federal shield law for journalists—not to place them (in his words) “above the law” but because, without one, it will be easier for the public to find itself under the thumb of a heavy-handed government. First Amendment protections exist to check the power of government. Exceptions to this principle are not made in the Constitution for national security or even for a time of war.

I do not worry when my colleagues in the news media expose possibly illegal government operations like the warrantless wiretapping of Americans by the Bush administration. I welcome the judgment of the American people as to whether the CIA should be operating a network of prisons in Europe, a judgment that could not be made until the Washington Post revealed their existence. And I believe that the parents of U.S. troops have a right to know if their government has lost confidence in the government of Iraq, whose authority their sons and daughters are risking their lives to establish.

The Society of Professional Journalists (SPJ), of which I am past president, is among the groups that believe the Bush administration is overclassifying documents and attempting to hide its policies from the American people. The society’s code of ethics calls on journalists to “seek truth and report it.” To do so, journalists often need not only analytical skills and gumption but also, occasionally, the ability to keep their secrets.

That ability, honored by many courts and past administrations, has given Americans assurance that they can confide in the press without personal consequences. It has given officials at all levels of government a way to alert the American people to alternative policy choices that their superiors would prefer to hide. The legitimacy of using leaks to maintain the transparency of government is such that the U.S. Supreme Court, in the 1971 Pentagon Papers case, refused to block the publication of confidential documents, despite the objection of the White House in a time of war.

The right of journalists to maintain confidences, even from government, is implicit in the First Amendment. As Mr. Schoenfeld himself points out, four federal appeals courts agree. It is worth noting that Branzburg v. Hayes, the 1972 case that dealt with reporters and grand-jury subpoenas, was narrowly decided. Four Justices argued in the dissent that journalists are entitled to a complete exemption from the requirement to testify, and even Justice Powell in his concurrence found reason to believe there are times when they should be exempt. So, apparently, did the Justice Department, which in the wake of Branzburg instituted guidelines that produced three decades of restraint in the summoning of reporters before grand juries.

Recent cases imply that such restraint is eroding, and the most recent appeals-court rulings have rejected the idea of a “reporter’s privilege.” In the Plame affair, 35 state attorneys general filed an amicus brief urging the Supreme Court to hear the cases of Judith Miller, Matthew Cooper, and Time, and to establish a qualified reporter’s privilege. The Court, as we know, declined to do so.

Given this legal climate, SPJ’s board voted in March 2005 to endorse on the federal level a solution that has worked in 31 states: a shield law. Are there problems with such a law? Absolutely, and some are correctly identified by Mr. Schoenfeld. Who should be covered? SPJ’s position is that one’s function rather than just one’s employment as a reporter should be the determining factor. Might Congress some day threaten to repeal the law in a bid to punish the news media? Perhaps, but that would leave journalists no worse off than they are now under the federal system.

Irwin Gratz

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