I. Introduction: History & Background

The Fifth Circuit has recognized a First Amendment qualified privilege for journalists in certain classes of cases. Where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party, the reporter enjoys the privilege, and the party seeking the information must demonstrate with substantial evidence that the information is relevant and not available elsewhere, and that its need for the information is compelling. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792, 799 (5th Cir. 1983). However, where a grand jury or a party in a criminal case seeks the non-confidential work product or testimony of a journalist, the Fifth Circuit recognizes no privilege. United States v. Smith, 135 F.3d 963, 968, 971-72 (5th Cir. 1998). Rather, the Fifth Circuit has held that the First Amendment protects journalists' non-confidential materials and sources only from criminal process issued with intent to harass. Id. at 969, 971.

The law in the Fifth Circuit remains unsettled regarding whether a qualified privilege is available against a subpoena in a civil case that seeks the identity of a journalist's non-confidential sources or work product, though various dicta suggest the Fifth Circuit may not afford the journalist a privilege in those instances. Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990); Smith, 135 F.3d at 972. Finally, it remains an open question whether a reporter's confidential sources or work product sought in a grand jury proceeding or criminal case are entitled to qualified protection. Certain language in Smith, however, including its construction of Branzburg, may cloud the availability of those rights. Smith, 135 F.3d at 968, 971-72.

In the most recent decision by the Fifth Circuit addressing the reporter’s privilege doctrine, the Fifth Circuit reaffirmed, in an unpublished decision of some notoriety, its position that qualified First Amendment protection of journalists from subpoenas is at its nadir when brought to bear against grand jury subpoenas. In re Grand Jury Subpoenas, 29 Media L. Rep. 2301, 2303-04 (5th Cir. Aug. 17, 2002) (per curiam) (unpublished). Without deciding whether the information sought by the grand jury was confidential or not, a panel of the court declined to reverse the district court's contempt order, which had remanded freelance writer Vanessa Leggett to custody following her refusal to produce all originals and copies of her notes and tapes of interviews regarding a celebrated Houston murder. Id. at 2303. Thus, Leggett remained incarcerated until January 4, 2002, when the term of the grand jury expired, or 168 days all told -- the longest period of incarceration of a contemnor-journalist in the history of the United States at that time. A subsequent grand jury returned an indictment without the need for Leggett's testimony.

The leading cases with which any analysis of the reporter's privilege in the Fifth Circuit must begin are Miller, Selcraig, and Smith.