This dissertation has employed a multi-disciplinary approach blending historical research, textual analysis, and case analysis. It does not claim to present a complete history of the journalist privilege debate, but it is organized chronologically to trace how the debate in statutory and constitutional realms evolved over time and to examine how First Amendment values might have driven debate in both legal realms. Rather than a continuous historical narrative, chapters focus on seminal moments and turning points in the debate. These include creation of the first state-level shield law, first attempts to adopt a federal shield law, and first attempts to argue for a First Amendment-based privilege.
The tools of the historian are used in chapters that flesh out the roles of non- judicial actors, such as journalists, press advocates, and legislators. Research in this vein has uncovered unexpected events in a little-remarked year in journalist privilege history, 1929, when the first attempts were made to adopt a federal shield law.225 A striking feature of the discussion in that year was the use of rhetoric that tracks closely to
225
Dean C. Smith, Journalist Privilege in 1929: Sen. Arthur Capper and the Start of the Shield Law Movement in America (unpublished conference paper presented Aug. 7, 2009, Association for Education in Journalism and Mass Communication, Boston, Mass.) (on file with the author).
Meiklejohn’s self-government rationale and Blasi’s checking-function rationale, press theories not fleshed out until decades after this early skirmish. Research also indicates that creation of the nation’s first state-level shield law, in Maryland in 1896, has been long misconstrued as a local reaction to a local event, the jailing of John T. Morris.226 On the contrary, legislators in Maryland were reacting to a national scandal in Washington that involved the threatened jailing of a prominent journalist from Baltimore227 – a national news event that sparked a nationwide lobbying campaign that led to shield-law bills in several states and talk of a federal shield law in Washington. A fresh look at early events such as these suggests that non-judicial actors, including journalists themselves, were beginning to articulate First Amendment justifications for a journalist privilege long before the argument was ever made in a court of law.228 Sources for this research have included reports in the popular press and trade press, Congressional and state legislative reports, court filings, and archival material.
Textual analysis is used in two distinct ways: At times, the analysis focuses on the language of adopted statutes, as well as proposed statutes, to track the evolution in
thinking on the journalist-privilege issue and the emergence of trends in lawmaking;
226
See, e.g., The Reporter’s Privilege Compendium: An Introduction, REPORTER’S COMMITTEE FOR FREEDOM OF THE PRESS, available at http://www.rcfp.org/privilege/item.php?pg=intro (last visited Dec. 30, 2009). David Gordon was perhaps the first scholar to note that the jailing of John T. Morris could not have been the immediate impetus for the Maryland shield law because the Morris incident happened 10 years earlier. See Gordon, supra note 178.
227
See, e.g., War on the Correspondents: Senator Gray’s Committee Has Its Way in Senate, The Newspaper Writers Who Refused to Betray Confidence in Danger of Criminal Indictment, N.Y.TIMES, May 30, 1894, at A8 (detailing the start of a three-year legal struggle in which the Senate tried to force reporter John S. Shriver to reveal his sources for stories about alleged bribery in Washington, an incident that became known as the Sugar Tariff Scandal). See alsoTrial of John S. Shriver: Another Recusant Witness of the Sugar Investigation in Court Before Judge Bradley, N.Y.TIMES, June 16, 1897, at A4 (reporting on the long-awaited trial of reporter Shriver, in which the judge dismissed all charges and declined to force Shriver to testify).
228
other times, the analysis focuses on the rhetoric of debate as state legislators and members of Congress have weighed shield law proposals. The research shows, among other things, that the evolution of statutory language tracks closely to events in a given era, developments in legal scholarship, the emergence of new technologies, and reactions to adverse court opinions.229 A small, but humorous, example was the way that some post-Branzburg shield laws expressly extended protection to pamphleteers.230 Previous research by Packer, discussed earlier, provides an example of how a close reading of a Congressional debate can reveal much about the motives and aspirations of non-judicial actors, or at least the way they portray their motives and aspirations, while staking out positions on the issue.231 This study employs a similar technique to gauge the presence and uses of First Amendment rhetoric by non-judicial actors – a key marker of
“legislative constitutionalism,” or the theory that statutory law can protect and advance constitutional norms. The research indicates that as early as 1936, in Congress’ first hearing on the privilege issue, First Amendment rhetoric was in abundance.232
Case analysis comes to the fore in some chapters, but in a way that deviates slightly from traditional doctrinal analysis. Because legislative constitutionalism
envisions judicial and non-judicial actors conducting an ersatz dialogue over time, dicta will be as important to this study as final holdings. How did judges answer the claims of
229
Smith, supra note 11 (describing the evolution of statutory language in light of new technology and as a reaction to Branzburg).
230
The reference is to Justice White’s oft-quoted nod to “the lonely pamphleteer.” See Branzburg, 408 U.S. at 703.
231
Packer, supra note 16.
232
Prohibiting Revelations of Confidential Communications Made to Editors, News Reporters, Correspondents, Journalists, and Publishers: Hearing on H.R. 10381 Before the H. Comm. on the Judiciary, 74th Cong., 2nd Sess. (1936) (unpublished hearings).
non-judicial actors? How did they account, if at all, for the number of state shield laws accumulating on the books? Did non-judicial precedents exert any hortatory power at all? The research shows that judges in early First Amendment cases, including Branzburg, had to resort to discussion of non-judicial materials, including legal scholarship, in the absence judicial precedents to cite.233 As legal scholars turned from hostile to generally supportive of the idea of a qualified privilege for journalists, their work was used to support recognizing a qualified privilege in federal circuits that did so in the years after
Branzburg. Tracing rhetoric from the non-judicial realm into the judicial realm helps illuminate the thought processes of judges, especially when viewed over a period as long as the history of journalist privilege.
Finally, because the author agrees with William Lee’s assertion that the question of who should be covered by a journalist privilege has been the centrally important question throughout decades of debate,234 the study uses this question as a unifying thread. The issue flared up as early as 1929, with the first failed attempt to adopt a federal shield law,235 and it has been a serious stumbling block in recent debates over a federal law.236 Nearly every chapter includes at least a brief discussion of this issue, and later chapters zero in on the journalist-definition as a focal point for debate over how the First Amendment should be interpreted, both in court decisions and in statutory shield laws. If
233
Dean C. Smith, Statutory Shield Law in Constitutional Orbits: The Rise of the Covered Person Issue
(unpublished conference paper presented Aug. 7, 2009, Association for Education in Journalism and Mass Communication, Boston, Mass.) (on file with the author).
234
Lee, supra note 15.
235
Smith, supra note 226.
236
Ansley Schrimpf, Senators Announce Compromise on Federal Shield Bill, NEWS RELEASE,REPORTER’S COMMITTEE FOR FREEDOM OF THE PRESS, Oct. 30, 2009, http://www.rcfp.org/newsitems/
there is a close nexus between the evolution of statutory and constitutional law in a First Amendment-implicated area such as press rights – as “legislative constitutionalism” would suggest – then the covered-person issue should track closely in both realms over time. This goes to the heart of this study: It supports that nexus.