First Amendment Law Prof Blog

Thoughts on The Free Flow of Information Act - Part II

Lets assume the Free Flow of Information Act, the proposed reporter’s shield law I blogged about on Tuesday, would lead to greater public disclosure of government wrongdoing. That alone might explain why AG Michael Mukasey opposes the law. But what about his claim that a reporter’s shield would place vital information beyond the reach of federal prosecutors and "core national security authorities." We've heard the "war on terrorism" cry before, so Mukasey’s claim deserves a closer look.

First, its important to understand what the bill does not do. It does not withhold essential information from any federal agent. In fact, I’d call it an exaggeration to say the bill guarantees confidentiality at all. It only requires investigating agents to look elsewhere for essential information before a reporter can be subpoenaed. They can in fact compel disclosure if that initial search bears no fruit. Requiring the feds to play by the rules is not the same as hiding the ball.

Second, important limitations narrow the reporter’s protection. The right of confidentiality is not absolute if the reporter commits a crime or witnesses a crime, and it doesn't apply at all to information that would help prevent the most serious crimes.  See section 4.

What about national security? Confidentiality does not apply to information "a federal court has found by a preponderance of the evidence would assist in preventing an act of terrorism." Period. Doesn’t apply. Nor does it apply when a "significant and articulable harm to national security" outweighs the public interest in maintaining the free flow of information. See section 5. The very act of balancing interests presumes the former would trump the latter in necessary circumstances.

Perhaps its the "preponderance of the evidence" standard that gives Mukasey pause, or the requirement for showing a "significant and articulable harm to national security." But isn’t any threat to national security "significant," so long as it is credible? And doesn’t the "preponderance of the evidence" standard simply mean that the information is more likely than not to establish cause? Here that means cause to believe the information would "assist" federal agents in doing their job. Assist: to give aid, to advance in some degree. Is this what’s so objectionable? It might be different if agents had to show that the desired information was "necessary," "essential" or even "highly likely" to benefit national security. But they don’t. And there is no doubt that federal courts already know how to protect legitimate executive secrets when conducting a disclosure hearing; think in-camera review.

Besides, government agents wouldn’t have to worry about any of this if the information they want would help prevent a specific case of death, kidnapping or serious bodily harm. The proposed statute doesn’t recognize a right to confidentiality in those circumstances. Again, section 4. And isn’t death, kidnapping and bodily harm what most terrorist acts and threats to national security involve?

Maybe the burden of accountability troubles Mukasey, the very idea of having to appear before a federal court and articulate a reason for disclosure. But to borrow words from the late Justice Thurgood Marshall, "it is not burdensome to give reasons where reasons exist." The Administration, just like reporters, must operate within the bounds of the law, and ever since Marbury v. Madison that’s meant submitting to the jurisdiction of a competent court. If there’s a case for compelling disclosure, surely the government can make it, and I don’t see how the Free Flow of Information Act would stand in its way.

There’s more . . . but that’s for another day.

-Kathleen A. Bergin

Thoughts on The Free Flow of Information Act - Part I

In an opinion piece in USA Today, Attorney General Michael Mukasey sounds off against the Free Flow of Information Act presently being debated in Congress. If enacted into law, the measure would protect members of the press under certain circumstances from being compelled to identify  informants or the information they traded on a promise of confidentiality. Mukasey argues that the bill would put reporters "above the law" and "impede investigations of serious crimes," including terrorism and other threats to national security. Besides, he says, the most notable news stories, think Pentagon Papers, Watergate break-in, Enron scandal, all broke with the help of confidential informants whose identity was not protected by a statutory reporter's shield. And so, the argument goes, a statutory shield will unnecessarily intrude on legitimate law enforcement objectives without delivering any countervailing benefits to members of the press or the public that benefits from their work.

Setting aside for a moment the details of the proposed law, consider Mukasey's threshold argument: that the press has functioned fine without a statutory shield so why enact one now?  History is certainly rich with confidential informants who've accepted the risk of of possible disclosure, but I think Mukasey overstates the case.  Whatever incentive confidential informants may have had to come forward in the past, can we really say that the press, and through it the public at large, wouldn't benefit from added protection?

In Branzburg v. Hayes, the Supreme Court declined to grant the press an unqualified right of confidentiality under the First Amendment.  But the press still flourished, as did the use of confidential informants, in part because the decision left room for recognizing a qualified privilege on a case by case basis that takes into account the risks and benefits present in each independent circumstance. Indeed, most jurisdictions follow this approach, but the standards vary, and what is protected in one jurisdiction may not be protected in another. A federal shield statute would at least bring some consistency in the law that in turn may encourage otherwise wary informants to come forward with valuable information the public would want to know.

Moreover, its true that Pentagon, Watergate and Enron insiders were willing to talk without guaranteed protection, as were informants who leaked the Bush Administration's domestic spying, torture and rendition programs - matters Mukasey neglects to mention in his op-ed. But could we ever quantify (or qualify) how many episodes of government or corporate wrongdoing have yet to be discovered because those in the know are unwilling to talk without adequate protection?  To borrow the words of another Administration insider, there are things "we don't know we don't know."  And its likely to remain that way until a federal shield becomes law.

Mukasey's additional concern that the Free Flow of Information Act would undermine legitimate law enforcement investigations also deserves a closer look.  More on that tomorrow . . .

-Kathleen A. Bergin

UVA Welcoms Leading First Amend Scholar to the Law School Faculty

Professor Frederick Schauer will join the faculty at UVA law school this fall.  From the UVA website:

Frederick Schauer, a leading expert on the First Amendment, constitutional law and legal philosophy, will join the University of Virginia Law School faculty in August. Schauer has served as the Frank Stanton Professor of the First Amendment at Harvard's John F. Kennedy School of Government since 1990, and was previously professor of law at the University of Michigan. . . .

"We are delighted to welcome Fred Schauer to the University of Virginia," said Dean John C. Jeffries Jr. "He is an extraordinarily prolific scholar who combines wide-ranging interests with keen analytic discipline. He will make a wonderful addition to the Law School faculty."

Schauer is the author of numerous books, including "The Law of Obscenity" (BNA, 1976), "Free Speech: A Philosophical Enquiry" (Cambridge, 1982); "Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life" (Clarendon/Oxford, 1991); and most recently, "Profiles, Probabilities, and Stereotypes" (Belknap/Harvard, 2003). He also co-edited "The Philosophy of Law: Classic and Contemporary Readings" (Oxford, 1996) and "The First Amendment: A Reader" (West, 1992, 1995), and is the author of more than 200 published articles on constitutional law and theory, freedom of speech and press, legal reasoning and the philosophy of law. He is currently George Eastman Visiting Professor at Oxford University and a fellow of Balliol College.

-Kathleen A. Bergin

SCT Upholds Indiana Voter ID Law

In a 6-3 decision released this morning the Supreme Court upheld an Indiana requirement that requires voters to produce a photo id in order to cast a ballot.  Its not an easy decision to digest.  Justice Stevens authored the lead opinion, joined by CJ Roberts and Justice Kennedy.  Justices Thomas and Alito joined Scalia's concurrence.  Souter, Ginsburg and Breyer were in dissent. 

Couple points to note, however.  Civil rights groups had lined up with Democrats to oppose the Republican inspired measure on the ground that the burdens imposed will discourage poor, elderly and minority voters from participating in the political process - all without delivering any counterbalancing benefits to the state.  One of the primary motivations behind the law is the asserted need to deter in-person voter misidentification.  The problem is, as pointed out by Justice Souter, not a single instance of this type of voter fraud has been recorded in the history of Indiana elections.  Ever.  But real problems, such as absentee-voter fraud, duplicate registrations, and the like, go unremedied.   

The decision leaves room for future "as applied" challenges - an increasingly favorite strategy for disposing of controversial cases - but those challenges are difficult to win, and certainly don't leave much promise for the tens of thousands of Indiana voters who are now disenfranchised, just in time for the state's May 6 primary.   

Access Crawford v. Marion County Election Board here.  More from Rick Casen, (Loyola Los Angeles) who authored an amicus brief in support of the challengers, at Election Law Blog.

-Kathleen A. Bergin