In a story that reminds me of The Onion’s “Area Man” series, a group of randomly selected Pennsylvania citizens, with no collective policymaking expertise, has recommended that the state legislature change its shield law to narrow the protections for journalists.
A state grand jury has been investigating claims that Pennsylvania Attorney General Kathleen Kane and her staff improperly disclosed confidential grand jury information. That investigation has itself made news because of leaks. And recently, the grand jury ventured in a different direction: It issued a report on how to stop grand-jury leaks, including calling for a crime-fraud exception to the shield law.
To fill in some of the background, as PennLive.com reported:
The grand jury investigation was initially focused on the leak of a [confidential] 2009 memo to the Philadelphia Daily News. However, over the course of the investigation, further leaks about the grand jury’s activities emerged.
Earlier this month, it was reported that two [Philadelphia] Inquirer journalists had been subpoenaed in an effort to determine who leaked information to them from the Kane case. Those journalists reportedly invoked [the shield] law.
Pennsylvania’s statute allows journalists to refuse to identify their sources in legal proceedings and government investigations. The proposed exception would permit authorities to compel disclosure of a journalist’s source if the communication between the journalist and source constituted a criminal act—e.g., a breach of grand jury secrecy rules—or if the source testified about her communication with the journalist.
It’s understandable why the grand jury, the special prosecutor working with it, and other officials might be worried about these leaks. But the report is … lacking.
First, it’s the work of E.B. White’s evil twin. The language is neither definite nor specific nor concrete, the sentences are loose, and needless words appear everywhere (“We believe the balancing of interests under the present absolute privileges presently applied to the ‘Shield Law’ should be tempered”).
Second, and more importantly, basically by definition the report parrots the government’s views. That’s the nature of the grand jury process: You get mostly one side of the story. Even the report itself says as much: “Our views are based, in part, upon our own observations in this investigation, and in particular, based upon testimony we received from government lawyers.”
I’d bet my last pair of moon shoes that if I filled the room with media lawyers and sympathetic witnesses, I could get a grand jury to issue a report recommending an even stronger shield law. That’s not arrogance. I’m not that persuasive (ask my girlfriend). But the one-sidedness of the process puts a fat finger on the scale.
It’s worth noting here that the report says, “[we] do not want our recommendation … to be viewed as an attempt to limit the freedom of the press,” while also adding that it is the press’s duty “to come forward and assist law enforcement”—two fundamentally incompatible claims.
Third, isn’t it odd to have grand juries issue reports recommending legislative changes? I understand the value of asking a group of randomly selected people to sit in judgment of a peer on matters of fact and law and probable cause or guilt. That’s baked into our legal system, for good reason. But asking that same group of non-experts to act as a think tank, after giving the group essentially one perspective to consider?
That’s the Fox & Friends of policymaking.
But, surprisingly, it’s not that uncommon.
“State grand juries have all sorts of powers, which vary from state to state,” said Mark Johnson, a media lawyer at Dentons in Kansas City. “Some states only allow grand juries to vote on indictments, while others treat them as blue-ribbon panels of civilians brought together to investigate ‘problems,’ report on them, and propose solutions.”
According to “Federal Grand Jury,” a resource by University of Dayton law professors Susan Brenner and Lori Shaw, grand juries historically have had a role in investigating the state of public affairs, as well as criminal activity. Colonial grand juries actually ran local governments, supervising everything from bridge maintenance to local jails. Since then, state grand juries mostly have lost their public affairs functions, because administrative agencies, which didn’t exist in colonial times, have taken over.
For its part, “Pennsylvania is famous for giving grand juries broad commissions to investigate,” Johnson said.
Fortunately, there is an important consolation here: According to local reporting, the legislature appears to be uninterested in passing the grand jury’s recommendations into law. And the state Supreme Court already has rejected one invitation, in 2008, to fashion a non-textual crime-fraud exception. With any luck, this proposal will fade from the discussion soon.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.