Reporter's Privilege

This section covers the use of subpoenas to force journalists to disclose their confidential news sources and unpublished information. Shield laws exist in forty states; if a reporter isn't covered by a shield law, there may still be a constitutional privilege that helps protect sources and information. This section also covers official attempts to seize journalists' work product and documents without a warrant.

Pensler v. Fox

January 15, 2015

A libel plaintiff suing a local FOX station in Chicago sought to obtain a news producer's communications with the FOX in-house attorney. FOX argued that those communications should not have to be released because of the attorney-client privilege. The plaintiff argued that such a privilege is not recognized in Illinois. The Reporters Committee argued that protection of communications between news reporters and producers and their in-house counsel is essential to preserving the integrity of confidential pre-publication legal advice. If neither reporters nor lawyers can trust in that confidentiality, reporters may not feel comfortable being completely open with the lawyer, who in turn cannot provide the best advice. Furthermore, the brief points out that it is impractical to expect that counsel will always communicate only with the most powerful executives at the news organization and not with producers.

Protecting anonymous commenters

Should news organizations look to shield laws in fighting subpoenas for posters' identities?
Page Number: 
Cindy Gierhart

This is a condensed version of a white paper on available means of protecting the identities of anonymous commenters on news web sites, which will be published in the near future.

By opening their web pages to anonymous online commentary, news organizations have opened themselves to subpoenas seeking the commenters’ identities. Sometimes the subpoena is sought so the commenter, once identified, can then be sued for defamation. Sometimes a prosecutor or a defendant in a criminal trial would like to call the commenter as a witness, based on posts that suggest the commenter has relevant information of the crime. Sometimes prosecutors or defendants simply want to keep the commenters off the jury, based on their comments online.

Whatever the reason, news organizations have an interest in protecting the anonymous speech of those who post to their websites.

Revising the Attorney General's guidelines

Further changes on federal regulations on subpoenaing reporters follow dialogue with reporters
Page Number: 
Kimberly Chow

A year after the Department of Justice began a dialogue with representatives of the news media, it issued a second set of revisions to its internal guidelines for media subpoenas.

While the Obama administration has been criticized for actions including targeting the phone records of journalists and labeling one journalist a co-conspirator in violations of the Espionage Act, the Department’s decision to work with the media to put better safeguards in place for the future has been a positive sign.

Media lawyers pointed to the revised subpoena guidelines as evidence of Attorney General Eric Holder’s willingness to establish a conversation with the media and foster more sensitivity to their concerns within the Department of Justice.

Court finds identity of leaker not relevant to murder trial, overturns order to journalist to disclose source

Kimberly Chow | Reporter's Privilege | News | December 16, 2014
December 16, 2014

An Illinois appellate court has reversed a trial court’s order that a reporter reveal his confidential source, shooting down the judge's conclusion that finding the identity of a leaker of a police document in a murder case justified compelled disclosure.

The Reporters Committee, joined by 38 other media organizations, filed an amicus brief in the case, People of the State of Illinois v. Bethany McKee, in April 2014.

Washington Times settles case involving Homeland Security's seizure of reporter's papers

Kimberly Chow | Reporter's Privilege | News | October 2, 2014
October 2, 2014

The Washington Times has settled a lawsuit it brought with former reporter Audrey Hudson against the Department of Homeland Security, whose Coast Guard Investigative Service improperly seized notes and papers of Hudson’s during a 2013 raid on her home.

"We need to be ready to fight"

Ted Boutrous on free speech, reporter's privilege and legal challenges ahead for journalists
Page Number: 

Media lawyer Ted Boutrous.

By Tony Mauro

Mauro is a member of the Reporters Committee Steering Committee and U.S. Supreme Court correspondent for The National Law Journal.

Lawyer Theodore Boutrous Jr. may be best known these days for his winning ways in headline-making cases on issues ranging from same-sex marriage to class actions and teacher tenure.

Defending James Risen: Circuits Split

Many federal circuit courts offer journalists little protection from testifying in criminal trials
Page Number: 
Cindy Gierhart

When the Supreme Court in June denied reporter James Risen’s request for an appeal of his contempt order for refusing to name a source, it left a bleak outlook for the reporter’s privilege in criminal cases in the Fourth Circuit. Unfortunately, many of the other federal circuits do not paint a bright picture when it comes to reporters testifying in criminal cases.

While there is no federal shield law (supporters hope the latest version of such a bill will go to the Senate floor for a vote soon), most federal circuit courts have recognized some type of reporter’s privilege. A reporter’s privilege protects journalists in some instances from having to testify about their reporting or reveal their confidential sources.

Supreme Court requires police to obtain warrants before searching cell phones

Bradleigh Chance | Reporter's Privilege | News | June 25, 2014
June 25, 2014

The Supreme Court handed down a unanimous decision in favor of digital privacy Wednesday that says police generally need a search warrant to examine an arrested person’s cell phone.

Chief Justice John Roberts wrote a sweeping opinion, stating that digital devices contain collections of potentially sensitive information. The Court rejected arguments that searching a cellphone is akin to examining anything else officers might find on someone they arrest.

“Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Roberts wrote.

The opinion still allows police to search cell phones without warrants under “exigent circumstances.” This includes “ticking-bomb scenarios” or instances when there’s reason to believe evidence is going to be destroyed.

Media organizations urge Senate to vote on federal shield bill

Cindy Gierhart | Reporter's Privilege | News | June 13, 2014
June 13, 2014

Spurred by a decision by the U.S. Supreme Court not to hear an appeal by New York Times reporter James Risen – which could result in Risen going to jail or being fined for not naming his source – media organizations stress that now is the time to pass a federal shield bill.

More than 70 news organizations – the Reporters Committee included – sent a letter to the Senate majority and minority leaders earlier this week, urging them to schedule a vote on the shield bill.

Supreme Court will not hear Risen's appeal over subpoena in Sterling prosecution

Cindy Gierhart | Reporter's Privilege | News | June 2, 2014
June 2, 2014

The U.S. Supreme Court announced Monday it will not hear an appeal by New York Times reporter James Risen, who has been subpoenaed to testify in a government leaks prosecution.

Risen could now face jail or fines if he refuses to testify.

Joel Kurtzberg, Risen’s attorney, said the ball is now in the government’s court. Risen was never held in contempt because the trial court initially ruled that he was protected by the reporter’s privilege and did not have to testify. An appellate court later reversed, and that decision now stands.

Therefore, the government will have to pursue Risen’s testimony again in trial court, Kurtzberg said.

“If they say they are going to do that, we will make clear that [Risen] is not going to testify and then there would have to be a contempt hearing,” Kurtzberg said.