Should the Press Be Privileged?
VTR Date: October 17, 2005
Constitutional expert Floyd Abrams explores the media's relation to the law.
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GUEST: Floyd Abrams, Esq.
I’m Richard Heffner, your host on The Open Mind.
And my guest today is no stranger to this program. Indeed, I think it’s the 30th time now that eminent constitutional attorney Floyd Abrams has joined me at this table … not always, but usually, to discuss free press and First Amendment matters.
Usually, too, our conversations here give me a chance to needle and to hector my good friend. For so often – whether he rejects or embraces this notion – I find him to be so much more the First Amendment/free press “voluptuary” or absolutist than I could ever be.
Today, however, I don’t know quite where I stand on the key issue of press privilege and the law.
While my guest – who once admonished me that “where you stand depends on where you sit” – as one would have expected because of his participation in so many cases related to the press, including, of course, the famous Pentagon Papers case, has played a major role in the recent Judith Miller imbroglio, which saw the New York Times controversial writer/reporter forced into prison for week after week after shameful week for refusing to reveal her sources in a White House-involved Federal grand jury investigation.
So I turn to Floyd Abrams today to tell us what he sees as the proper way to resolve questions concerning press privilege and shield laws. How do we go about this and save what we want to save most, Floyd?
ABRAMS: I think we need to do it legislatively rather than via judicial decisions, that’s in part because judicial decisions have been going against us recently, but also because I think we need the sort of firmness and clarity, so far as we can get it, that only legislation can bring.
So in the Judy Miller case, for example, the Court of Appeals for the District of Columbia concluded that there was no protection, no balancing to be done, just no protection at all for journalists who promise confidentiality to sources and are then called to testify in front of Federal grand juries, who are acting in good faith.
In those circumstances, the court said there is zero First Amendment protection. I think we need some sort of Federal shield law and, and the terms of it are difficult to articulate and controversial in some respects, but some sort of Federal shield law to give a level of legal protection for journalists in that circumstance.
HEFFNER: When you say, “some sort”, it sounds as though there is no absolute …
HEFFNER: … bottom line here.
ABRAMS: Yeah. And I think there is not. I know as a, as a practical matter I think I know that Congress will not adopt the sort of absolute shield law protection that exists in New York State for example, or in the District of Columbia and a bunch of other states.
I think that has been made clear, I think, in the course of hearings in which I, among others, testified. So the question is, if you believe that there should be some sort of shield law, what sort of exemptions should thee be.
For example, in the Bill proposed by Senator Luger and Senator Dodd, there is an exemption with respect to matters involving imminent harm to national security. Imminent future harm.
HEFFNER: You mean a reporter cannot claim press privilege.
ABRAMS: A privilege if the effect of asserting the privilege successfully would be to bar the authorities from gathering information about some matter which involves imminent harm.
HEFFNER: Floyd, who makes the judgment about whether that does, indeed, happen?
ABRAMS: Well, it would have to be a judge.
HEFFNER: So, you’re back to the courts.
ABRAMS: Oh, yeah, yeah. There’s no avoiding having a decision maker unless you went to an absolute level of protection. So, so, yes. You need a judge cloaked with all the independence that the Federal judiciary has.
But immediately, as soon as you, you say, “Well, all right, national security.” Then the question is “Well, you know, what do you mean by national security?” Let alone what do you mean by “imminent”?
And, and there will be, you know, some hard cases. But a case like the Judy Miller case, for example, in my view, should not fall on the unprotected side. That is to say, if what’s going on is a leak investigation, even an interesting, provocative one involving high ranking people, that’s not “imminent harm”. That is, you know, maybe imminent prosecution (laughter) but, but that’s not what is I think in the mind of those Senators who’ve drafted the proposed legislation.
But there are other examples that can be … if you once say “All right imminent harm to national security”, the hypothetical I’ve been plagued with all my professional life …
HEFFNER: The Pentagon Papers …
ABRAMS: Well, the Pentagon Papers is one I use as an example of a national security related disclosure, which it’s very important to protect. The other side’s hypothetical is usually a kidnapping, on-going kidnapping, “child at danger”, do you really mean to say the journalists shouldn’t have to disclose relevant information to catching the person?
HEFFNER: What do you say?
ABRAMS: Well I usally start by saying, “It’s never happened. It won’t happen in the future, they’ll publish something after all.” They won’t agree to confidentiality, but at the end of the day, you know, one has to answer the question, instead of avoiding it. And, at the end of the day my view is that if there is a statue which has an exception for imminent harm to national security, it will also have an exception for imminent harm to life or limb or something like that.
So we won’t be limiting it just to national security. To me the most important thing is the work “imminent rather than the national security tag”. That is to say that it would have to be something that is about to happen and soon. Rather than simply finding out, you know, who did what to whom?
HEFFNER: But that also sort of puts us in a position of synchronizing our watches …
ABRAMS: Oh, you’re absolutely right. You’re absolutely right. And, and when you cite the Pentagon Papers case, for example, it brings up a related issue which obviously troubled a number of Senators. They say, they ask … “well suppose the information itself (which has been leaked) is illegal for the ‘leaker’ to provide. Surely they say, you can’t mean we should have protection then against identifying the ‘leaker’.”
Now that is the Pentagon Papers case which … where The Times obtained information from a “leaker” Mr. Ellsberg, who not only was not authorized to provide it, but may have committed a crime in doing so. May have, I say because he was accused, finally, but then the charges dropped because of the misconduct by the Nixon White House.
But the law may be that someone in his position, who provides top secret documents, may have committed a crime. And so the question one is asked is “Do you really mean to say that even in a situation in, in which the ‘leaker’ has acted illegally in giving the information, that that should be protected?”
And people like me respond by saying, “Yes, in fact that’s one of the situations that occurs rather frequently.” I mean the, the public doesn’t know, but it is the truth that lots and lots of information is tossed about. Information in Washington about material which is classified and beyond being classified, could fall within the realm of illegality in releasing it.
That’s one of the reasons why the recent indictment of two former APAC officials has, has a so much broader interest to the press, to First Amendment types, to Washington types and it should have to the public generally, than it’s so far received.
And the reason is that there … that the theory of the government seems to be that by talking to reporters about classified information … something that happens all the time in Washington, that the person in the government who‘s doing “the talking and revealing” may have committed a crime and the reporter or the third person who gets the information, like the APAC people, may commit a crime simply by telling other people.
I mean one of the remarkable things about our, our government is that we do not make criminal the dissemination of all classified information. There was a proposal to that effect just a few years ago, which, which passed the House and the Senate and was about to become law and President Clinton vetoed it. And it was not re-introduced in the New Administration’s list of priorities. And it’s not been introduced at all. But we were very close to having a law … much more consistent with English law … limitation, broad ranging limitation and a criminalization of the revelation of anything that’s classified.
Now, if I were a journalist who worked in Washington I would tell you that just about everything worth knowing is classified. And lots that’s not worth knowing is classified.
From my own perspective we’ve done pretty well by striking a very rough balance between keep secret genuine secrets and being pretty loose about protecting other things which it, you know, it might be more convenient not to keep secret. But where’s there’s no genuine national harm in revealing.
HEFFNER: It interests me that you say that. You said a moment ago if you were a journalist …do you feel yourself as an attorney representing journalists to have a set of concerns that are dissimilar from those of the journalists?
ABRAMS: No. I mean … you know, I think of things through both the legal prism and journalistic in the sense of what I’ve learned from journalists. But the journalistic part gets sort of fed into you, you know, my legal analysis and, and my efforts to be of help.
I mean the follow up to the Judy Miller case is, is a good example. I mean I viewed that as, primarily … that part of the matter involving her … as not atypical of other First Amendment threats. That is to say, a prosecutor, in good faith, seeks information from a journalist who, in good faith, refuses to turn it over because she obtained it in confidence. And has promised confidentiality to a source.
So for me, with my background that is a not atypical situation at all. For a variety of reasons the Judy Miller case has come to involve more issues and I have been surprised and sometimes disturbed by some journalists who are reacting in a way that is not consistent with the, with the norm that I just set forth to you. Which would be that, you know, if you have a situation like that, you do your best to fight it. I mean if there’s a waiver by the source, that’s something else.
But that the presumption, the journalistic presumption has been that if you promise confidentiality, you do all you can to protect confidentiality.
Yet what I’m hearing from some journalists, after the denouncement of the Judy Miller case is … sort of “Well, you know, wouldn’t it be good to just, handle matters like this quietly. Don’t go to court, don’t make waves, make a deal and put it all behind you.”
HEFFNER: Now what … tell me what you are telling me. Tell me what … how you interpret what you’ve just said …
HEFFNER: … what’s happened …
HEFFNER: … that permits this to have happened, because I’m aware of that, too. I’m shocked by it …
HEFFNER: … how do you explain it?
ABRAMS: A part of it results from the unusual circumstance that four journalists had already reached their “peace” so to speak with the Special Prosecutor. And, and many of whom … in fact, I would say all of them, had much less relevant information than July Miller. But nonetheless who had information of interest to the Special Prosecutor.
So, given difficulties that, that arose, difficulties as simple as “We lost the case”, legally; or as personal as relationship issues between July Miller and some other people at The Times, which The Times has now written about.
But given one reason or another or all of them put together, I have been very disturbed to just get the sense that there is doubt, or self-doubt maybe you could all it … by some journalists to the basic notion that … first of all, it doesn’t matter who the journalist is and it doesn’t matter whether the prosecutor seems to be going after people worthy of going after or not.
You know, for me, maybe I am more absolutist than I like to think. But, but it seems to me it’s not a First Amendment principle, it’s a … it’s a human principle of relationships and hope for future relationships of journalists with their sources, that if they make a promise, they should keep it.
And that the exceptions to that are so few and so rare, as I said earlier if the source says in a persuasive way, “It’s alright with me if you testify” then that changes the dynamics, at least of the situation.
But what I sense, to respond to you more directly, is that there is … there are forces at work in this case which have led too many journalists to think, “Well, gee, if, if we’re going to lose the case anyway, legally, and if at the end of the day, she leaves prison, anyway, without remaining silent for ever, albeit in the context of her source calling her up and telling her it’s okay. But if that’s going to happen, was it worth fighting in the first place?”
And my view is that you can’t make judgments like that in retrospect. It was worth fighting if you believe the principle matters. And if you believe the principle matters, then it doesn’t matter who’s asserting it, and it doesn’t matter whether the, the ultimate bottom line will be to help, you know, this potential group of defendants rather than another group of defendants.
I think we’re finally … Dick, I think one of the things at work here … and this is about the worst word I could use about it … is, is that we have become so politicized, as a country, there is so much hatred afoot … read the blogs … about Judy Miller and you’ll get an idea … that, that people who would ordinarily be supportive of what I will loosely call the First Amendment side in this, you know, in truth would rather see Carl Rove in jail than to defend a principle they might otherwise defend.
And that’s, that’s very disturbing to me. Because then it’s no principle at all. If principle is … a journalist should keep their word to their sources … unless their sources are people of whom we disapprove politically, then there’s nothing. Then, then we’re merely talking politics.
HEFFNER: Of course there was the turnaround on that. That there were many people, I gather who didn’t like not Carl Rove, but Judy Miller.
ABRAMS: That’s right. No, that’s right.
HEFFNER: But then that confused the business …
HEFFNER: … even more.
ABRAMS: Yeah. And it, it shouldn’t have. I mean it’s, it’s all so clear to me (laughter). That they can’t … if you, if you think it’s a principle that you’re defending … people have grievances with Judy Miller’s writing about weapons of mass destruction. Or whatever. I mean surely that, that can’t even be a factor in deciding whether she having promised confidentiality, she should keep her word and should fight to defend her right to keep her word.
But there have been, at least what I view, as a surprising amount of defections from people who would, in other circumstances, have supported the press side.
I mean I understand that on a purely political level why Democrats, in the Senate, say, have been so quiet about this. Because they, they have an interest … call it political, or even call it public policy. But, but nothing to do with a free press. And it has nothing to do with the First Amendment. And it has nothing to do with protecting confidential sources of journalists, or letting the public have more information in the long run. It has to do with, you know, political advantage.
HEFFNER: Floyd, I’ve asked you the question that’s going to follow a good many times … and in terms of a good many of the issues that we’ve discussed over the years … what’s the downside of your position?
ABRAMS: Well, in this area, the downside you could say has been shown by the potential value of the testimony that Matt Cooper offered and that Judy Miller offered. I mean this has always been a case which has been harder rather than easier because of the significance of what certain people in the Administration have done, whether or not it’s illegal, but the significance of it, on the one hand, and the potential significance of what the journalists have to say about it.
So, I mean a privilege means information is suppressed. A privilege means the courts don’t get the value of the lost information.
HEFFNER: As you look back over your long career … not so long … over your career, and as a student of history, do you think there have been very many important times when you would have had a little twinge of concern about press privilege?
ABRAMS: Actually, very … no. I mean in New York, for example, where we have an absolute privilege, I think I would know because someone would have complained. If there had ever been a case in which a defendant lost a trial because he couldn’t get really relevant information, or the prosecution saw someone walk free because a journalist wasn’t testifying, or some other public policy interest was dis-served. No I don’t think it happens.
This case has been odd and, and difficult, for what I’ll call “my side” for a lot of reasons. And one of them is, that in this case, the journalists do have information which is significantly more relevant, at least than is the norm … in, in cases that I’ve seen. Probably more relevant than, than any case that I’ve been involved in. Now whether that should be enough to overcome a privilege is, is the sort of question that people argue about.
So far the judges that have seen the evidence, and now we all know what the evidence is, because it’s all … that is to say, we know what Judy Miller testified to … we know what Matt Cooper testified to. But before that happened, we didn’t get a vote from judges who have examined secret submissions made by the Special Counsel explaining why he wanted the information and why it was relevant.
And, you know, that’s just another sign post that from the start this has been, you know, a difficult case. Entirely aside from the broad question of whether the First Amendment provides any protection at all. Because what these judges said was “even if it does, you’re going to lose anyway”. And in fact that was the main argument that, that Mr. Fitzgerald made the US Supreme Court against them hearing this case. The main argument was not that this is unworthy of their consideration or that courts are not in disarray or the law is unclear, or the law matters. No, the main thing he said was, “Why should you take this case when if they win on the proposition that there is First Amendment protection, they will still lose when you go and apply whatever privilege exists to the facts of this case.” And that has always been a difficulty and a reality of the case.
HEFFNER: Are you concerned that bad cases make bad law?
ABRAMS: I’ve always been concerned about that. That, that’s true.
HEFFNER: So the law that comes out of this …
ABRAMS: That’s, that’s always been an especially problematic aspect of this case. That’s why some press lawyers and some in the press have been weary of this case from the start. On the other hand, as we lawyers say …
HEFFNER: In 30 seconds.
ABRAMS: … you know, it’s a case which poses critical issues which need resolution. Is there legal protection? What sort of legal protection is there? Are journalists and sources forever to be in this situation where it’s a question of journalists going to jail or betraying their sources?
HEFFNER: Floyd, it’s always such a pleasure to talk with you, you are so clear and concise in what you say. And I realize, you’re worried now.
ABRAMS: That’s right.
HEFFNER: I’ll join you in that.
ABRAMS: Thank you.
HEFFNER: Floyd Abrams thanks again for joining me on The Open Mind.
ABRAMS: Thank you.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.
Meanwhile, as an old friend used to say, “Good night and good luck.”
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.