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

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