A Full-Court Press?

How Courts Can Limit Freedom of the Press

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
-- U.S. Constitution

Like just about every other part of the Constitution and the Bill of Rights, the First Amendment is neither absolute nor perfect. Its "free press" guarantee does not guarantee freedom of the press in all circumstances, regardless of whatever competing interests and priorities may be at stake. Indeed, the history of First Amendment law is replete with instances where "free press" rights have been limited in shape and form, for one reason or another.

Libel laws limit an absolutely free press. So do defamation and invasion-of-privacy claims. National security interests do, too, and so do law-enforcement goals. In the justice system itself, the very judges who are charged with protecting First Amendment rights permit millions and millions of pages of court filings each year to be filed "under seal"; that is, privately and beyond the reach of the press.

What the First Amendment's free-speech clause really means, then, is that the government has to come up with a pretty darn good reason for infringing upon free press if that infringement is going to pass muster. But if such a reason exists, courts have been - and will continue to be - willing to limit the "freedom of the press" despite the rather absolute language contained in the First Amendment.

There is a constant tension, then, between free-press rights and the rights and privileges of others who butt up against the First Amendment. In order to at least try to resolve one particular flash point - the subpoenaing of records from journalists in order to further law enforcement goals - the courts over the years have come up with what are known as "shield laws." The idea behind these laws is to have some formal recognition of, and protection for, the special relationship which exists between a journalist and her or her source.

Just as the law recognizes the confidentiality of relationships between attorney and client, between husband and wife, between doctor and patient and between priest and penitent, so, too, does the law recognize, in a more limited way, confidentiality in the journalistic context. And it isn't hard to see why. If sources of all stripes can't feel comfortable telling their favorite journalist information of public interest, then pretty soon the sources will stop talking, the information stream will dry up, and the important purpose behind the First Amendment will be jeopardized.

By enacting "shield laws," then, legislators across the country (but not Congress- there is no "federal shield law") have, to varying degrees, expressly acknowledged an incentive in the law toward a free flow of information to meia outlets. These laws have been described by at least one expert in the field, Harold W. Fuson Jr., as "a limited privilege to news reporters to refuse to divulge information that might damage their ability to gather news. At a minimum, this privilege requires the court to examine with care a claim of journalistic privilege" and to take into account certain factors like the "importance of the information sought" and the "availability of other sources of the information."

So where does all of this leave Vanessa Leggett? She spent a record 168 days in jail until last week because federal prosecutors wouldn't agree that she was entitled to the protections of Texas' shield law because she wasn't a real "journalist." Was she? She "has never published a book or news articles," according to the Associated Press, and got into trouble in the first place because of a book she was working on, information about which became relevant during a federal grand jury probe.

Leggett now is free, but may not be for much longer. She was released when the grand jury ended its work, but a new grand jury soon may be empaneled, and when that happens, Leggett may be subpoenaed again. The whole ordeal may begin anew. Her story raises fascinating free-press questions, especially in the age of the Internet and freelance work.

What exactly is a "journalist" or a member of the "press"? Remember, journalists are not and cannot be licensed by the state; no one has to take a formal test or graduate from some special school to be labeled or to work as a journalist. The First Amendment actually prohibits such licensing. So does one have to be published to be a journalist? Must one have to be employed by a recognized media outlet? And if the state cannot license journalists, can it then punish someone for not being a recognized journalist?

What about scholars or historians? Are they journalists? Does the free-press guarantee apply to all citizens? After all, some of the most important "press" work ever offered in American history - the very type of work the drafters of the Bill of Rights had in mind when they drafted the First Amendment - has come not from day-to-day journalists but from scholars and authors and just plain people who didn't punch a paycheck at the local newspaper.

Finally, what does it say about a government that would keep in jail for 168 days a woman whose only "crime" appears to be that she and the government disagree on her job title or description?

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