About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1999 Ann. Surv. Am. L. 227 (1999)
The Hidden Federal Shield Law: On The Justice Department's Regulations Governing Subpoenas to the Press

handle is hein.journals/annam1999 and id is 261 raw text is: THE HIDDEN FEDERAL SHIIELD JAW:- ON ThE JUSTICE DEPARTMENT'S REGULATIONS GOVERNING SUBPOENAS TO THE PRESS ADAM LPTAK* The protections afforded to members of the press against com- pelled disclosure of confidential sources and resource materials vary widely fromjurisdiction to jurisdiction and have fluctuated dra- matically over time. Only one body of law in this area has remained predictable for almost three decades: the Justice Department's Statement of Policy on the issuance of subpoenas to members of the news media.1 These remarkable regulations were promulgated and then en- forced by six different administrations entirely voluntarily, without compulsion imposed by any other branch of government. They recognize and express solicitude for the freedom of reporters to investigate and report the news and reporters' responsibility to cover as broadly as possible controversial public issues, even when these values are at odds with law enforcement goals.2 Further, they have remained stable and consistently enforced even as the journal- ists' privilege has taken a beating in the federal courts, particularly in criminal proceedings-which is precisely the forum in which the Justice Department might be expected to seek journalists' informa- tion most aggressively.3 I TEXT OF THE REGULATIONS The regulations require federal prosecutors to strike the proper balance between the public's interest in the free dissemina- tion of ideas and information and the public's interest in effective law enforcement and the fair administration ofjustice.4 The regu- * Senior Counsel, The New York Times Company. BA., Yale University, 1984; J.D., Yale Law School, 1988. 1. 28 C.F.R. § 50.10 (1999). 2. Id. 3. See, e-g., United States v. Smith, 135 F.3d 963 (5th Cir. 1998) (recognizing extremely limited protection for non-confidential press materials and allowing sub- poena for unaired portion of television station's interview with arson defendant). 4. 28 C.F.R. § 50.10(a). 227 Imaged with the Permission of N.Y.U. Annual Survey of American Law

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most