What became of the First Amendment?

CHAPEL HILL -- Last week the U.S. House of Representatives voted overwhelmingly (398 to 21) to approve a federal shield law to protect journalists like New York Times reporter Judith Miller, who spent 85 days in federal prison in 2005 for refusing to reveal the identity of a confidential source to a federal grand jury.

There is, however, little cause for celebration in the news from Congress.

It is a sad day in America when journalists need to ask for Congress' help to stay out of jail. The First Amendment's free-press guarantee -- that "Congress shall make no law abridging . . . freedom of the press" - should be the only shield a journalist needs to avoid incarceration for doing his or her job.

Why hasn't the First Amendment helped the 30 journalists and news organizations that in recent years have received subpoenas to appear in federal court to identify their confidential sources or turn over confidential information? Why has the First Amendment failed to protect those who refused to comply with the subpoenas and were fined, jailed or coerced into costly settlements?

The First Amendment failed because in 1972 the U.S. Supreme Court ruled that the First Amendment did not give journalists the right to refuse to testify before federal grand juries. In that case, Branzburg v. Hayes, the badly split court rejected as "speculative" journalists' arguments that being forced to testify about confidential sources or information would cause confidential sources to dry up and impede the free flow of information to the public.

For most of the last 35 years, however, that Supreme Court decision did not result in significant numbers of journalists going to jail because most federal courts interpreted the decision as granting journalists some First Amendment protection against having to testify in federal court proceedings other than grand juries. Not until 2001 did significant numbers of federal judges begin to reject that interpretation of the First Amendment, thereby encouraging federal prosecutors and parties to civil cases to subpoena journalists in record numbers.

This change has snowballed into the most vicious and calculated attack on the free press in America since the Nixon administration tried to prevent the nation's major newspapers from publishing the Pentagon Papers.

Testifying before Congress in support of the federal shield law, William Safire, a Pulitzer Prize-winning former political columnist for The New York Times, said he and other journalists had curtailed their newsgathering out of fear of federal subpoenas. This chilling effect, as it is called, cripples the free press.

The judicial and executive branches of the federal government appear to have joined forces in this attack on the media. The Supreme Court has watched journalists go to jail and refused to intervene, the Justice Department opposes the shield law as a threat to national security and is expected to muster strong opposition to the bill in the Senate, and the White House is threatening a presidential veto. Journalists have had to resort to asking Congress to grant them the freedom that the founders of this nation undoubtedly thought they had granted when they adopted the First Amendment more than 200 years ago.

Several years ago, I discussed with a Jordanian journalism professor the relative levels of press freedom in our countries. In Jordan, the professor complained, a journalist recently had been jailed for publishing offensive information about the Prophet Muhammad. I reported that in the United States reporters sometimes went to jail for refusing to reveal their confidential sources. The Jordanian professor thought he misunderstood me. Then he was incredulous. "Not in America," he said. "America has the freest press in the world."

No. Actually American had the 48th-freest press in the world during the previous 12 months (a year in which video blogger Josh Wolf spent 224 days in jail for refusing to hand over to a federal court videotapes of protesters damaging a police car), according to Reporters Without Borders, an international group that monitors press freedom.

Journalists have said for years that it is risky to ask Congress to legislate press freedom. They fear that Congress will conclude that what it has the power to grant it also has the power to take away. In other words, Congress could adopt a shield law this year only to take it away next year. Or, worse yet, Congress could take away more than just the shield law.

Journalists today have little choice but to ask Congress for help. We need a federal shield law to stop the government's attack on the free press. But whatever happens in Congress, we should not lose sight of what we need more than a federal shield law -- a First Amendment that is interpreted as keeping journalists out of jail.

(Associate Professor Cathy Packer teaches media law and works in the Media Law and Policy Center in the UNC-Chapel Hill School of Journalism and Mass Communication.)