By Douglas E. Lee, Special to the First Amendment Center Online
November 5, 2002
In 1972, the U.S. Supreme Court recognized in Branzburg v. Hayes that “news gathering is not without First Amendment protections.” The justices, however, could not agree about the form or breadth of those protections. As a result, no nationally recognized newsgatherer’s privilege exists. Instead, the protections currently in place for newsgatherers are set forth in a patchwork of inconsistent court decisions and state statutes.
Newsgatherers — a term that includes reporters, authors and television producers — often are subpoenaed to provide information in criminal and civil court proceedings. In some cases, the information sought is the identity of a confidential source. In others, the subpoenaing party seeks a reporter’s notes, video outtakes or other unpublished information. And in others, the newsgatherer is subpoenaed to testify about a crime or other event he or she witnessed.
Newsgatherers seek protection from these subpoenas for a variety of reasons. If newsgatherers cannot guarantee the confidentiality promised to some sources, they say, those sources will refuse to provide information that often is critical to important investigative reporting. Newsgatherers also claim that requests for nonconfidential, unpublished information interfere in news gathering by making them investigative arms of the government and by forcing them to spend time and money in court proceedings. Newsgatherers also cite the potential abuse they would suffer if litigants unhappy with a story or a book could routinely subpoena them to appear in court.
Many courts and state legislatures have recognized the validity of these concerns, particularly as they relate to confidential sources. In Baker v. F & F Investment, for example, the 2nd U.S. Circuit Court of Appeals in 1972 said that compelling a newsgatherer to disclose confidential sources “unquestionably threatens a journalist’s ability to secure information that is made available to him only on a confidential basis.” “The deterrent effect such disclosure is likely to have on future ‘undercover’ investigative reporting,” the court continued, “threatens freedom of the press and the public’s need to be informed … [and] undermines values which traditionally have been protected by federal courts applying federal public policy.”
Like the court in Baker, many federal courts have recognized a “qualified” newsgathering privilege, that is, a privilege, which can be overcome in certain circumstances, against testifying or producing information. These courts have held that such a privilege is rooted in the First Amendment and supported by the decision in Branzburg. Other federal courts, however, have rejected the existence of such a privilege, saying that neither the First Amendment norBranzburg requires that newsgatherers be treated differently than other citizens who receive a subpoena.
In response to these contradictory federal court rulings, many state courts and legislatures have stepped into the fray. Some state courts, for example, have interpreted the First Amendment and/or their state constitution’s equivalent to offer protections for newsgatherers. In addition, 35 states and the District of Columbia have passed laws protecting newsgatherers from unjustified subpoenas. Such statutes often are referred to as “shield laws.”
Although the privileges recognized by the federal and state courts and created by the state legislatures vary in detail, most generally provide that the privileged information cannot be obtained unless the party seeking the information can establish that:
The privileges also differ in the types of information that is protected. Some privileges, for example, protect only the identity of confidential sources, while others protect all unpublished information. The privileges also differ in applicability, as some apply in both criminal and civil cases and others apply only in civil proceedings.
Shield laws and the newsgatherer’s privilege receive the most attention when they fail to protect a reporter or author. In these cases, the newsgatherer usually is ordered to reveal a confidential source or to provide unpublished information. If the newsgatherer refuses, he or she may be found in contempt of court and jailed.
Vanessa Leggett, a Houston author, spent 168 days in jail in 2001 and 2002 after she refused to break promises of confidentiality to her sources. In 2005, then-New York Times reporter Judith Miller spent 85 days in jail before she agreed to disclose her July 2003 conversations about CIA officer Valerie Plame with Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby. Miller said Libby had released her from her promise of confidentiality.
The Miller case helped to renew and intensify interest in a federal shield law. There has been a continued effort to pass a shield law at the federal level since 2004. Over the years, however, the bills have become more and more watered down. What was once a proposed absolute privilege to protect sources has now, in its latest proposed version, become a qualified privilege with various exceptions. Despite the compromises and negotiations to find an acceptable version, all previous attempts at a federal shield law have died in Congress.
A congressional proposal that would give reporters who refuse to reveal confidential information or sources limited protection in federal court was passed by the House of Representatives in March 2009. President Barack Obama has stated that he supports a federal shield law. Meanwhile, the Senate is considering its own version of the bill.
As more and more newsgatherers work on the national stage — through television, books and the Internet — the lack of a national newsgatherers privilege is more and more problematic. Without a national privilege, these newsgatherers are subject to different and contradictory standards, with little guidance as to which standard might apply in a particular case. Which state’s law applies, for example, if a reporter working in one state is subpoenaed to testify in another state? Or if a reporter promises confidentiality to a source in a state that protects confidentiality but then is subpoenaed to reveal that source’s identity in a state that does not recognize the privilege?
These and other similar questions have not yet been answered. Thirty years after it decided Branzburg, the Supreme Court had the opportunity to resolve these issues in Leggett’s case. The Court, however, declined to accept her appeal. In 2005, the high court turned down appeals from Miller and Timemagazine reporter Matthew Cooper, both of whom were seeking to keep secret their sources in the CIA leak case.
For now, at least, the newsgatherer’s privilege and the issues surrounding it will continue to evolve at the lower federal court and state levels.
Bill Kenworthy contributed to this article.
Updated August 2009.