Shield Law hearing summary
SPJ's legal team at Baker Hostetler in Washington, D.C., followed this morning's Senate Judiciary meeting regarding a proposed federal shield law for journalists. These notes recap the discussion and were compiled by Malena Barzilai.
Senate Judiciary Committee
Hearing on Free Flow of Information Act 2006
September 20, 2006
Attendance
Committee members
Sen. Arlen Specter (R-Pa)
Sen. Jon Kyl (R-Ariz)
Sen. Chuck Schumer (D-NY)
Sen. Sam Brownback (R-Kan)
Witnesses
Paul J. McNulty, Deputy Attorney General, U.S. Dept. of Justice
Steven F. Clymer, Professor, Cornell Law School
Theodore B. Olson, Partner, Gibson, Dunn & Crutcher LLP
Victor E. Schwartz, Partner, Shook, Hardy & Bacon LLP
Bruce A. Baird, Partner, Covington & Burling LLP
On behalf of SPJ
Malena Barzilai
Laurie Babinski
Baker & Hostetler LLP
Summary of Witness’ Testimony (with Senators’ comments throughout)
Paul J. McNulty
- McNulty’s main point was that the Bill shifts the power unnecessarily from the executive branch (DOJ) to the judiciary to decide whether a journalist should be required to disclose a confidential source.
- He argued that courts lack the resources, knowledge and ability to effectively use the balancing test in determining the confidentiality of a source.
- Specter disagreed in questioning, noting that courts are able to weigh national security interests appropriately, as they do in habeas and electronic surveillance cases.
- McNulty countered, noting that a judge will not be able to adequately judge the consequences of the harm, and that each judge would consider such consequences differently.
- In defense of the executive branch’s power, he noted the DOJ’s record of restraint in issuing subpoenas to journalists – according to McNulty, there have been less than 20 cases in 15 years.
- Finally, he asserted that the Bill is a “solution in search of a problem,” because even with the aforementioned cases, “the media has not missed a beat.”
- Specter disagreed, asking for a case where the standard in the legislation differs from the DOJ guidelines. McNulty will answer in follow-up with the Committee.
- McNulty’s other concerns with the Bill included sending the wrong message to leakers and encouraging their behavior, tipping the balance in the separation of powers against the executive branch, and a Sixth Amendment limitation on criminals calling witnesses.
- Schumer brought up the government’s double standard and “selective outrage” regarding leakers – sometimes the government wants the information out and looks the other way when a leak occurs, while other times it pursues the leaker from its “high horse.”
Theodore B. Olson
- Olson’s principle argument, noting a circuit split regarding privilege law, was that “lack of uniformity [in the courts] creates intolerable uncertainty” among journalists, sources and their lawyers.
- Uniformity will regularize the rules in cases that, in opposition to McNulty’s reliance on the DOJ, Olson says will end up in court anyway if a journalist decides not to abide by a subpoena.
- The real question, Olson addressed in questioning, is whether the judges should carve out the privilege on their own as they’re doing now, or whether they should have Congress’ guidance as this Bill provides.
- In opposition to McNulty’s argument that the DOJ, not the courts, should be applying the balancing test, Olson countered that it’s exactly the courts that should be applying this balancing test as the courts do in many other instances, including when they determine probable cause for issuing warrants and apply the attorney-client privilege.
- Olson noted that 39 states’ attorneys general supported a shield law in an amicus brief in the Plame case because one law and various interpretations from the courts is still better than the many interpretations based on no solid law that currently creates the variation among circuits.
- Specter, in questioning Olson, asked if this Bill would have produced a different result in the Miller case. Olson responded: “It may have.”
Steven F. Clymer
- Clymer’s main point was the concern that the Bill will not actually contribute to the free flow of information. He noted that while the Judith Miller case was progressing, stories still came out using confidential sources, most notably the stories on secret prisons and wiretapping.
- Even with the Bill, there will be no additional assurance of confidentiality that a reporter can give a source. There are too many exceptions and there will be too many interpretations for such assurances.
- Clymer said that the lack of such additional assurance for journalists and sources creates a Bill where “what we get is all the costs … without the benefits.”
- Echoing McNulty, Clymer countered Olson, saying that the Bill will not accomplish uniformity with such an unstructured balancing test because federal judges are not competent to make the appropriate determinations.
Victor E. Schwartz
- Schwarz focused primarily on private litigation, noting that when Congress left privileges out of the Federal Rules of Evidence, “its judgment was correct.”
- All this Bill will do, he says, is contribute to the “free flow of information that shouldn’t really flow” because it treats all leaks, illegal or legitimate, the same.
Bruce A. Baird
Baird largely echoed Olson, noting that since confidential source cases will end up in court regardless of the Bill, at least the proposed law gives judges some guidance via the balancing test as to how to determine whether a reporter should be required to testify.