Free Flow of Information?

During a lecture I gave on American free press rights to a group of foreign journalists, one reporter in attendance shared his fears that government officials back home tap his phone and monitor his communications in an attempt to discover the identities of his confidential sources. He asked if that happens in the United States and what protections American journalists have.

My answer was: rarely, and only in narrow settings with a search warrant, largely because of the First Amendment. Later that day, news broke that the United States Department of Justice had secretly collected two months of telephone records from reporters and editors at the Associated Press, the world's largest news organization, for the likely purpose of rooting out sources for stories about foiled terrorist plots.

Despite the First Amendment, journalists entwined in a federal "leak" investigation find themselves mostly without legal protections, immunity or other privileges that would allow them solid grounds to quash a subpoena. State shield laws or common law reporters' privileges, available in 49 states, do not apply to federal cases.

We observed this in 2005 when the New York Times' Judith Miller spent 85 days in jail for refusing to reveal her confidential communications with a source (one she did not even use in a news story). We are seeing it again with Army Private Bradley Manning, who is currently in the midst of a military trial for providing classified military information to the website WikiLeaks. Meanwhile, attempts at creating a federal shield law have failed, and reports have surfaced that the federal government is prosecuting six current or former government officials for possibly leaking confidential information to reporters.

Even as a staunch free press advocate, I admit that the government has an obligation to protect certain state secrets. But once information reaches the press and the public, the resulting investigative witch hunts raise questions about how free our press really is.

The Department of Justice does have guidelines for subpoenaing journalists, but they are malleable, and courts have refused to infuse them with binding legal authority.

These guidelines require approval of the Attorney General, which appears to be easily gained, and a "reasonable" belief that a crime occurred and the information sought is "essential to a successful investigation." Further, that "all reasonable efforts" have been made to obtain the information from alternative sources. Additional elements include limiting the subject matter sought, avoiding large volume requests and using the material for verification purposes.

The government claims to have satisfied these requirements in the case of the AP, and a spokesman stated, "We value the freedom of the press." But that's a difficult statement to believe when the world's leading newsgathering operation and potentially its sources are being investigated.

The spokesman also said the government seeks to "strike a balance" between the free flow of information and the administration of justice. Admittedly, this is not an easy balance. Government officials struggle to protect secrets, the press fights for access, sources try to protect themselves and the public may ultimately get less information.

The idea of striking a balance in a leak investigation or press subpoena case comes directly from Justice Lewis Powell's decisive concurring opinion in Branzburg v. Hayes (1972), the Supreme Court's final word on reporters' privilege, in which the court ruled that reporters have no privilege, and no greater rights under the First Amendment, to avoid testimony before federal grand jury cases.

Widely considered guiding judicial statement on reporters' privilege, Justice Powell's opinion acknowledged that subpoenas served on reporters should be used as a last resort for information with a close relationship to a potential criminal investigation. Further, these subpoenas should be issued in good faith and not be used to harass the press.

When the government comes knocking on a newsroom door - or more precisely, seeks telephone records or other documents - it is difficult to see the good faith, much less to not feel harassed.

These cases create an even broader concern for the independence of the press. In his Branzburg dissent, Justice Potter Stewart voiced his fear of government "annexing" the press as an investigative arm. If the public feels the government only has to call up a reporter to find out what is going on, the constitutional independence of the press is shattered.

Moreover, even if nothing comes of this current investigation, the government may achieve its ultimate goal, instilling fear into other potential news sources and discouraging them from speaking to reporters or revealing secrets that the public needs to know. That does not sound like the American free press.

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.