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Unformatted text preview: Journalist's Privilege & Confidential Sources of Information Journalist’s privilege Right (or privilege) of reporters… to not reveal the identity of a confidential source… to be free from turning over published information or unpublished work product… to be free from testifying at judicial proceedings. Journalist’s privilege Since early 2004, some 30 journalists and news organizations have dealt with subpoenas ordering them to appear in federal court, identify their confidential sources or hand over other information about stories they have covered. Almost a dozen journalists from major news organizations have been cited for contempt of court for refusing to testify. Judith Miller of NYT spent 168 days in jail for refusing to reveal her sources in reporting on the Valerie Plame/CIA leak scandal. Pros and Cons
Why would a journalist refuse to testify? Need to conceal certain information to protect the free flow of information to the public. Journalists argue that they should have greater First Amendment protection because they have the serve as watchdogs over powerful governments. If a reporter is forced to reveal the identity of a confidential source, they might dry up. May cause harm to source i.e. lose job, harassment. Pros and Cons
Why would a journalist refuse to testify? Without confidential sources, much important news would go unreported. Confidential sources are critical to newsgathering. Public needs information for selfgovernance The burden of having either to testify or to fight a subpoena keeps journalists in court and away from their important jobs, which raises First Amendment concerns. Why would a journalist refuse to testify? Pros and Cons Journalists fear the government might use its subpoena power to harass the news media When police and prosecutors rely on journalists for information, they make the media an arm of law enforcement Journalists are supposed to be watchdogs of law enforcement, not part of it Pros and Cons Pros
Practical concerns Even if the demands of the subpoenas are met, media outlets must expend significant time and resources to deal with them. News outlets often must remove reporters from news stories because of subpoenas. This burden is especially onerous because in most cases the media aren’t party to the underlying lawsuits, because the material is often available through other means. Pros and Cons
Opponents' claims: Criminal defense attorneys argue that a client’s Sixth Amendment right to a fair trial outweighs the privilege of a journalist to refuse to testify Courts often emphasize that all citizens — including reporters — are obliged to testify Even if subpoenaed, rules governing the use of subpoenas are designed to prevent such abuses. Difficulty of determining who the privilege should apply to Cases
Garland v. Torre (1959) Facts of Case U.S. Court of Appeals for the Second Circuit refused to exempt the reporter from her obligation to testify but, for the first time, recognized that “compulsory disclosure of a journalist’s confidential sources of information may entail an abridgment of press freedom by imposing some limitation upon the availability of news” Judge Potter Stewart’s opinion Branzburg v. Hayes (1972) Facts of the case(s) Four consolidated cases dealing with the same First Amendment issue. Do reporters have a First Amendment based privilege to refuse to reveal their confidential sources and information to a grand jury? The courts 54 ruling sparked outcry… Ruling: No, there is no First Amendmentbased privilege for journalists. Legal bases: First Amendment protection is not absolute. The First Amendment is not a shield against laws of general applicability (such as the requirement to respond to subpoenas). Journalists enjoy the same First Amendment protection as all other citizens, and no more; freedom of the press is a personal right, not an institutional one. Legislative bodies should pass laws to protect reporters; it’s not a proper role for the courts. Branzburg v. Hayes According to Stewart’s dissent, to compel a reporter to testify, one must show all of these three things: 1) There is probable cause to believe the reporter has information that is clearly relevant to a crime; AND… 2) The information cannot be obtained by alternative means; AND… 3) There is a “compelling and overriding” interest in the information. Stewart’s 3-part test for a Stewart’s qualified privilege qualified Who, What & Where of Privilege Who, Even when a court recognizes a First Amendment based privilege, the protection afforded to journalists who refuse to testify varies based on three factors: (1) The type of proceeding in which the journalist is subpoenaed to testify; (2) The type of information or material the journalist is being asked to divulge, i.e. if the journalist is an eyewitness, promised confidentiality to a source, and whether the information had been published; and (3) Whether the person ordered to testify is, in fact, a journalist. Federal Shield Law? Currently no federal shield law First attempt introduced into Congress in 1929; more than 100 bills have been introduced and have failed Several bills to create a federal shield law were introduced in Congress in 2005, 2006 and 2007 Currently, the Free Flow of Information Act of 2007 has been passed by the House but is awaiting a floor debate and vote in the Senate; status: uncertain. First Amendment-based First privilege in North Carolina privilege All three federal district courts in N.C. have recognized and applied a qualified privilege for news reporters. The Fourth Circuit Court of Appeals has recognized a privilege. However, if you are in federal court in a diversity action, N.C.’s statutory shield law will probably apply. Privilege in State Courts Courts in some states have recognized a journalist's privilege based on their state constitutions. Other courts have recognized a journalist privilege based in common law. In New Mexico, the privilege is written into the state courts’ rules of evidence. But the most reliable approach has been for state legislatures to create shield law statutes – starting with Maryland in 1896. State Shield Laws State shield laws continue to provide strong protection to journalists in state courts. Today, 33 states and the District of Columbia have shield laws. Shield laws do not always protect journalists completely Some are qualified, some are absolute. They vary significantly from state to state, and judges usually interpret them very narrowly. N.C. Shield Law (1999) To determine whether the N.C. shield law will protect you… First, decide if you are eligible for protection; Second, if you are eligible, then determine whether the party seeking your testimony will be able to prove what he or she must prove to compel you to testify anyway. Remember, this is a qualified privilege that relies on the 3part test adapted from the Stewart dissent in Branzburg. N.C. Shield Law Sec. 853.11(a)(1) B. The statute: “A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.” N.C. Shield Law N.C. “Journalist” is broadly defined Sec. 853.11(a)(1) A. Definitions: “(1) Journalist. Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.” N.C. Shield Law N.C. The privilege can be used in all types of legal proceedings Sec. 853.11(a)(1) A. Definitions: “(2) Legal proceeding. Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasijudicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.” N.C. Shield Law N.C. The privilege can be used by many “news mediums” Sec. 853.11(a)(1) A. Definitions: “(3) News medium. Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.” The law can be used to protect both confidential and nonconfidential information. The law even protects you in cases in which you are a party, such as libel cases. However, the law cannot be used to refuse to testify about a crime or tortuous conduct to which you have been an eyewitness; and The law protects only information obtained after Oct. 1, 1999. N.C. Shield Law N.C. Shield Law In addition, the protection of the shield law still can be overcome by a demonstration that: [1.] The information sought is “relevant and material” to a legal proceeding; [2.] There are no alternate sources for this information; AND… [3.] is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought. Zurcher v. Stanford Daily (1978) Facts of the case Issue: Does the First Amendment protect the media from otherwise legal newsroom searches? Ruling: No Privacy Protection Act of 1980 Passed by Congress in response to Zurcher. Severely limits government’s ability to obtain newsroom search warrants. Act makes it illegal for police or other government officials investigating a crime to search for or seize work products or other documentary materials possessed by “a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication” when the person is not suspected of a crime Parallels state shield laws. Privacy Protection Act of 1980 Four exceptions to PPA of 1980. Police may use search warrants when: 1) A person possessing work products or documentary materials is suspected of a crime related to those materials — that is, when the journalist is not an innocent third party — and whenthe alleged crime is not related specifically to the handling of the material in question. 2) There is reason to believe that the immediate seizure of such materials is necessary to prevent death or serious injury. 3) When there is reason to believe the advance notice inherent in the serving of a subpoena would result in the destruction, alteration or concealment of the materials. 4) Materials have not been produced in response to a subpoena and either all appellate remedies have been exhausted or there is reason to believe that the delay caused by further court proceedings relating to the subpoena would threaten the interests of justice. Cohen v. Cowles Media Co. (1992) Facts of the case Can you reveal a confidential Can source if you want to? source Issues: Is a reporter’s confidentiality agreement with a source a legally binding contract? Does the 1st Amendment give the reporter the right to break that contract without being punished? Cohen v. Cowles (1992) The Court ruled that the First Amendment does not prevent a source from successfully suing a journalist who breaks a promise of confidentiality. “Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen v. Cowles (1992) ...
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- Spring '08