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Background | Appellate Process | Moot Court Simulation | Separation of Powers | The Federal Grand Jury | Shield Laws and Federalism Shield Laws and Federalism The U.S. Constitution creates a federal system of government in which power is shared between the federal (national) government and the state governments. The Constitution lists the powers of the federal government. Any power that the Constitution does not expressly give to the federal government, nor deny to the states, belongs to the states, i.e., the right to enact most criminal laws. Some powers are shared by both the national and state governments, i.e., the power to collect taxes. Originally, the provisions of the Bill of Rights were only applicable to the federal government. After the Civil War, Congress passed the Fourteenth Amendment to the Constitution (1866) in order to assure that at least some of the provisions of the Bill of Rights also applied to the States. By the turn of the Twentieth Century, the Supreme Court began to use the Fourteenth Amendment to selectively incorporate provisions of the Bill of Rights to the states. Since then, almost all of the provisions of the Bill of Rights have been incorporated. The case of Near v. Minnesota incorporated freedom of the press (1931). The judiciary has the power to interpret the law. The federal judiciary, particularly the U.S. Supreme Court, has the final say over the interpretation of the U.S. Constitution and federal laws. The state judiciaries have the final interpretation of state constitutions and laws, so long as neither violate the federal Constitution. When any Court, including the U.S. Supreme Court, interprets a Constitutional right, it determines the minimum level of protection afforded by that right. While the government cannot violate these minimum protections, it is not prohibited from affording more protections than the Courts to that right. In essence, the Courts determine the "floor," but not the "ceiling," for Constitutional rights. The reaction of many states to the case of Branzburg v. Hayes (1972) demonstrates this "floor/ceiling" analogy. Branzburg held that the freedom of the press clause of the First Amendment does not provide journalists with a right to withhold the names of their confidential sources from a grand jury investigating a criminal matter. The journalists had argued that requiring the disclosure of sources would adversely affect the press by discouraging persons with controversial stories from speaking to reporters. Although the U.S. Supreme Court rejected this argument, many states found merit to it. In response, some thirty states and the District of Columbia passed "shield laws" which prevent, under most circumstances, journalists from being punished for refusing to reveal their sources. (1) These states and the District of Columbia decided that the freedom of the press clause provides more protection for journalists than the U.S. Supreme Court said it provided. Unlike these states, the federal government has not enacted a "shield law" for journalists. If a federal court orders journalists to reveal their sources, they must either comply or risk being held in contempt of court. Judith Miller, a journalist for the New York Times, faced this situation. She was working on an article concerning the leak of a CIA officer's name to a member of the press. A federal judge required her to reveal her source to a federal grand jury investigating this manner. She refused, was held in contempt of court, and went to jail. In February 2005, Senator Christopher Dodd, D-Conn, introduced a federal "shield law" bill in Congress to protect journalists from having to reveal their sources, however, they could be required to provide information to a judge if there was no other way to obtain it. (2)
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