Pederson discusses pros and cons of reporter privilege

Tony Pederson, SMU’s Belo Distinguished Chair in Journalism, drew from decades of experience as a reporter and editor with the Houston Chronicle to detail the ins and outs of reporter privilege in the Maguire Center for Ethics and Public Responsibility’s Public Scholar Lecture Nov. 14.

Pederson opened his talk by telling the audience that he has changed his mind on the need for shield laws – laws that give reporters privilege to hold information confidential. “When we look at the cases of the past few years, and at some of the complexities concerning the free flow of information and the role of media in democracy, I think we can clearly see that those rules have changed,” he said.

He also praised the Maguire Center for taking an active role in such debates: “In a very brief time here, it has elevated dialogue on ethics and public responsibility in a very positive way,” he said.

A longtime activist for freedom of the press, Pederson is a past chair of Texas Media, a coalition of media groups formed to pursue access issues and open government in Texas. He has received the James Madison Award from the Freedom of Information Foundation of Texas for his work on First Amendment issues, as well as the Jack Douglas Award from the Texas Associated Press Managing Editors’ Association for his service to Texas newspapers. He now serves as director of the Freedom of Information Foundation of Texas and Inter-American Press Association, as well as a member of the Board of Advisors of the International Center for Journalism.

Below are a few highlights from Pederson’s lecture:

Can you explain the reason why even some reporters and editors oppose shield laws?

There have been three primary arguments against shield laws, which have been debated for many, many years. The first is that many journalists historically have said that the First Amendment is sufficient – and in fact that even to acknowledge a need for a shield law essentially admits that the First Amendment is not sufficient to protect reporter privilege.

The second argument typically has been that any shield law has to define a journalist – and once that is defined in any type of statute, there is a tendency on the part of governments to limit who can be a journalist. If you look at Asia, Latin America, at many countries in Europe, there are licensing provisions concerning who can be a journalist and processes in place that are necessary to complete before anyone can be a journalist. This has never been the tradition in the United States, which has been very open. No one needs any type of education credentials or to pass a test. No one needs to do anything except go to work. That is a very strong free-press tradition, and one that is very important when looking at the history of reporter privilege.

The third argument has been that anything a legislative body grants, it can take away. We have seen this in a number of issues dealing with access to information, as well as with various other laws that have impacted the free flow of information.

The traditional objections are good ones, and for many years I held them very near and dear to my heart, because I clung to the First Amendment in a way that was completely emotional. But when we look at some of the history and case law, and we look at where we’re going right now, it’s a very troubling picture of where media will stand and what contributions they will be able to make to the public dialogue.

Is there or is there not some sort of right to keep sources confidential even in the face of legal process or of a subpoena to appear before a court of law?

Reporters historically have believed that there has been a privilege based in the First Amendment, that was intended by the Founders. The first argument on this goes back to well before we were the United States. In 1722 James Franklin – the brother of Benjamin – was brought before Colonial authorities. He was the publisher of the New England Courant, and he was asked to identify the source of information published in the paper that was critical of the Colonial authorities and government. He refused and was sent to jail, and that was almost 300 years ago.

And back in the 1890s, there was a controversy involving a Baltimore Sun reporter who reported grand jury testimony dealing with an investigation into police corruption. The reporter was brought in and pressured. Within a few years, the Maryland legislature passed the first shield law in the United States. There are now 32 states that have shield laws of some descriptions.

Why isn’t Texas one of them?

The rules have changed, and changed rather dramatically, against reporter privilege. During the 1980s, we did have a great deal of success – and sometimes luck – in moving reporter privilege cases through the courts. But the case that turned my head, that really told me the game had changed, was the 1993 case of Healey v. McMeans. It involved a body-dumping case in a Fort Bend County funeral home, and it came directly from the Court of Criminal Appeals. And that court said that newspeople have no constitutional privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution. That was when most of the lawyers in the state said, “We’ve got to get a shield law.”

Well, we tried. We’ve tried for the last five sessions of the Legislature. In May 2007, a shield law – which was actually a pretty good one, and supported by virtually every major media company in the nation – failed. It was taken down at the last minute on a technicality, which had to do with an omission in the bill analysis that must accompany every piece of legislation.

I think we have a chance in two years, and we’ll be back. But at this time, reporter privilege in the state of Texas is in jeopardy. It’s hanging by a thread that can be snapped at any time.

What’s the status of federal law?

A shield law has passed the U.S. House of Representatives by an overwhelming majority. There is now one pending in the Senate – slightly different, but these two can be reconciled. If it passes the Senate by a significant majority, it should be veto-proof. And in the House, it was passed by a very unusual coalition of conservatives and liberals, Republicans and Democrats, all of whom seem to understand the validity of having reporter confidentiality as a part of the free flow of information.

Is there anything that reporter privilege won’t or shouldn’t cover?

I have never argued, and I will never argue, that a journalist’s privilege ought to be absolute. I’ve always said that any privilege is a limited privilege. If a reporter has access to information that is absolutely relevant to a claim before a court, if that reporter is the only one from whom the information can be obtained, or if the reporter is an eyewitness to a crime, I absolutely agree it’s imperative that the journalist testify. I would never argue otherwise, and I think to do so flies in the face of all ethics. It also would set journalists up as a separate class of citizen. I don’t think the Founders ever intended that.

The real question that needs to be asked is whether there’s a fundamental change that has taken place in the relationship between the government and the press. The New York Times pointed out that among the 19 witnesses in the Scooter Libby trial, 10 were journalists. And in the words of the Times, that was “a spectacle that would have been unthinkable just a few years ago.” They also pointed out that of those 10 journalists, three had used Libby as a source and previously argued the First Amendment confidentiality of it.

I’m not on board completely with the idea that the dynamic has changed in such a way that it has permanently damaged the role of the media. But I do think there are serious concerns about the free flow of information, and about how we will guard the integrity of the media in the future. If we start to live with too many secrets, we will be a lesser people and a poorer democracy.