Leggett's Case Revives Talk about Shield Law

By Dias, Monica | News Media and the Law, Winter 2002 | Go to article overview
Save to active project

Leggett's Case Revives Talk about Shield Law

Dias, Monica, News Media and the Law

The idea for a federal statute giving journalists the right to protect confidential sources -a so-called "shield" law - has come and gone several times in the 30 years since the U.S. Supreme Court ruled in Branzburg v. Hayes that reporters have no right to refuse to testify before grand juries.

But book author Vanessa Leggett's 168-day stay in a federal jail in Houston for refusing to disclose confidential information to a grand jury has revived the debate over whether a federal law is needed, and if so, what it should say.

The Supreme Court left the door open for Congress to act. In its Branzburg ruling, the Court said Congress was free to decide whether a statutory reporter's privilege was "necessary and desirable" and to "fashion standards and rules as narrow or broad as deemed necessary." The Court also noted that states were free to do the same.

Before Branzburg, 17 states had enacted shield laws that gave reporters some form of protection against compelled production of confidential or unpublished information. Since the Branzburg decision, another 14 states and the District of Columbia have enacted laws that protect journalists in proceedings in state courts.

However, Congress has never enacted a federal shield law, despite several attempts that followed well-publicized subpoenas of reporters. The first flurry of bills followed quickly after the Branzburg ruling. Another series of bills introduced in the late 1970s followed the jailing of Myron Farber, a reporter for The New York Times who spent 40 days in jail in 1978 for refusing to give his confidential research files to a criminal defendant in a murder case.

The most recent effort occurred in the late 1980s, following a round of Justice Department subpoenas to television networks for their footage of the 17-day hijacking of TWA Flight 847 in Beirut and Algiers.

In the six years following the Branzburg decision, 99 proposals for a federal shield law were introduced in the House or Senate, but none won passage, a House committee reported in 1979.

The proposals failed for two main reasons. First, no consensus could be reached on how the law should define "journalist." Rep. Floyd V. Hicks (D-Wash.) told Congress in 1973 that "it seems hasty at this time to promote" a federal shield law when this and many other questions remained unanswered. Sen. Sam Ervin (D-N.C.), who introduced one of the bills in 1973, later wrote that the efforts also failed in part because press groups wanted an absolute privilege, instead of a qualified privilege that would require them to disclose information in certain circumstances.

Those same reasons doomed an attempt in 1987 to stir interest in a federal shield law. Sen. Harry Reid (D-Nev.) approached press groups about filing a bill, but he dropped those plans when press organizations could not agree on what they wanted, said Evan J. Wallach, who was Reid's general counsel and public policy adviser.

"The reason there was no consensus was because there were two groups: the 'purists' who refused to believe that the Branzburg trilogy was the last word and felt that any protection provided by legislation could be abrogated, and the 'realists' who were willing to take what they could get," said Wallach, who now is a U.S. Court of International Trade judge in New York City.

"The realists were mostly lawyers, and the purists were mostly reporters."

The same conflicts that stalled past efforts to enact a shield law exist today, according to media attorneys and press groups.

First, how should "journalist" be defined? Several federal circuit courts have said someone is a journalist if he or she is engaged in investigative reporting and have an intent at the inception of the newsgathering process to disseminate news to the public. Some federal appeals courts have found that definition broad enough to include a book author (Shoen v. Shoen) and a documentary film maker.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Leggett's Case Revives Talk about Shield Law


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?