Profile — May / June 2007
The Shield Bearer
How a conservative congressman from Indiana became journalism’s best ally in the fight to protect anonymous sources.
By Bree NordensonRepresentative Mike Pence, a fourth-term Republican, delivers his speech with the cadence of a southern minister. “Over and over the media tells us America is tired of the war. Yes, America is tired. It’s tired of what we’re being told about this war,” he says, his voice rising and his face tightening. “It’s tired of the incessant negativity. Tired of the constant coverage of every road-side bomb while excluding the mention of every courageous, brave, and productive act. . . .” The audience of several hundred prominent conservatives explodes with applause. “The media and the Democrats may be tired of this war,” Pence continues as he begins to pound the podium, “but America is not tired of this cause.”
Congressman Pence, a charismatic and influential conservative leader from Indiana, is the keynote speaker at the Ronald Reagan Banquet, a formal dinner on the second night of the three-day Conservative Political Action Conference at the Omni Shoreham Hotel in Washington. More than a dozen speakers, among them Ann Coulter, Representative James Sensenbrenner, Grover Norquist, and Oliver North, have spoken, and aside from the Democratic Party, nothing has been the subject of more criticism than the media. “Now I know there are a few here from the mainstream media and they’re probably surprised that we’re here in these record numbers,” said Mitt Romney in the opening lines of his afternoon speech. “ ‘Course they wrote our obituary last fall. . . . The truth is that their wishful-thinking reports of our demise have been greatly exaggerated. In fact, I predict that we’ll be around a lot longer than, say, the newspapers will be around.”
Conservatives these days are generally not considered champions of the national press, but a little more than two years ago, after reading an editorial in The New York Times about Judith Miller’s jailing and the need for a federal reporter’s privilege, Pence took it upon himself to champion the legislative effort for a federal media shield law, which would protect journalists from being forced to reveal confidential sources. Pence, a forty-seven-year-old lawyer and former talk-show host, may not like what he sees as “bad news bias” in the mainstream media, but he’s far more troubled by the “rising tide of cases where federal prosecutors have used the threat of jail time or outright jail time to coerce reporters to reveal confidential sources.” For the last two years, Pence has been the primary legislative force behind the shield-law effort, making it one of his signature issues. “Our founders did not put the freedom of the press in the First Amendment because they got good press—quite the opposite was true,” he says. For Pence, the shield law represents a good-government provision, one that would ultimately help citizens “make informed decisions” about their leadership.
Though Indiana has had a reporter’s privilege statute on the books since 1941, Pence admits he had been unfamiliar with the issue. After reading the Times editorial, he spent two months researching the topic. In late 2004, he and his staff reached out to members of the media and the legal community and began crafting a bill, which he and Representative Rick Boucher, a Virginia Democrat, introduced in the House in February 2005. And unlike previous attempts to pass a shield law, this one would have legs.
For the thirty years since Branzburg v. Hayes, the historic case in which the Supreme Court ruled that journalists were not exempt from grand jury subpoenas, a tacit pact between the federal government and the media, predicated on the First Amendment’s guarantee of a free press, had allowed the two to coexist in relative peace. But as Douglas McCollam noted in these pages last July, the comfortable “zone of ambiguity” between the government’s need to keep secrets and the media’s right to publish sensitive but important information is “being squeezed.” Over the past several years, reporters have been handed subpoenas with increasing frequency in spite of a set of Justice Department guidelines aimed at restricting media subpoenas that has been in place since the Watergate era. Nearly half of the approximately ninety-six federal subpoenas served on the press during the last fifteen years have been issued since 2004.
Under the department’s guidelines, federal prosecutors may subpoena the media only if the material or testimony they are requesting relates to published information (except under “exigent” circumstances) and is central to their case. Prosecutors must also exhaust all nonmedia sources before requesting the approval of the attorney general. But in cases involving special prosecutors and civil litigants, which have accounted for many subpoenas in recent years, the guidelines do not apply. Moreover, the department has begun to ignore its guidelines in standard federal cases. It’s “changed the ground rules,” says Sandy Baron, executive director of the Media Law Resource Center. “This is an administration that due to its lack of respect for the press and its role in society no longer reads the Justice Department guidelines in the same way as prior administrations.”
Pence’s decision to spearhead the federal shield-law effort at the end of 2004 coincided with a groundswell of support among press advocates for such an undertaking. Media organizations began to push the idea not only because of the rise in subpoenas, but also because of growing disparities in how federal courts interpreted the First Amendment. “First, you have the fact that the federal courts don’t have the same protection as afforded by the states in which they sit,” Baron explains, referring to the forty-nine states that recognize a reporter’s privilege either by statute or judicial precedent. “And then on top of that you have the differences between the protection afforded by different federal courts. So in a sense it’s like a lottery. That kind of gambling mentality is not the way to run a First Amendment railroad.”
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