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This section covers the use of subpoenas to force journalists to disclose their confidential news sources and unpublished information.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.

People v. Juarez; In re Robles

August 19, 2016

The Reporters Committee, joined by 57 news organizations, filed an amicus brief with the New York Supreme Court Appellate Division, in support of New York Times reporter Frances Robles in her effort to fight a subpoena to testify about a jailhouse interview and turn over her notes. The amicus brief argued that the trial court that ordered her to testify did not give sufficient consideration to the protections in the New York Shield Law, which only allows subpoenas against journalists for non-confidential information when the information is highly relevant, meaning the case should "rise or fall" with the evidence. The brief argued that reporter's relations with their sources will be jeopardized if such information, and particularly information from jailhouse interviews with criminal defendants, is compelled without meeting that high standard.

Boal v. United States

July 29, 2016

Reporter and filmmaker Mark Boal conducted a series of interviews with Sgt. Bowe Bergdahl that were published on the Serial podcast in 2015. Subsequently, the military prosecutor in the court martial of Sgt. Bergdahl informed Boal that he intended to subpoena Boal to obtain the recordings of the interviews in their entirety. Before the military subpoena was issued, Boal filed a complaint in the Central District of California arguing that the reporter's privilege should protect against the compelled disclosure of the recordings. The Reporters Committee and 36 other media organizations filed an amicus brief in support of Boal. The amicus brief explains the important policy reasons underpinning recognition of the reporter's privilege, argues that the reporter's privilege extends to Boal and asserts that the Court should address Boal's claims now, so that he can avoid unnecessary injury.

Rule 41 Comment

February 17, 2015

The Reporters Committee filed comments regarding the proposed amendment to Federal Rule of Criminal Procedure 41 concerning "remote access" searches of electronic media. The proposed amendment to Rule 41 offers insufficient safeguards for newsgathering and other First Amendment-protected activity. Remote-access searches of journalists’ computers can reveal a variety of confidential information, including lists of contacts, work product, and reporter-source communications. These searches would violate the Privacy Protection Act and the First and Fourth Amendments. The proposed amendment offers insufficient protection to journalists who use encryption and anonymity tools.

Stopping an end-run around the reporter's privilege

Closing loopholes for subpoenaing third-party communications helps journalists keep information confidential
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Michael Lambert

Many states with shield laws still have loopholes that allow subpoenas of third-party records.

The ability to maintain the confidences of a reporter-source relationship is a cornerstone of journalism. Reporters often rely on the safeguards of state shield laws and reporter's privilege to preserve the trust. But these protections are not absolute — and in the area of electronic communications, they are often essentially absent.

Journalist Kathy Leese recently learned about the loophole in her state's law that allowed the prosecutor to subpoena her cell phone records without her knowledge.

US v. Aaron Graham

January 22, 2016

Graham was convicted of robbery. In the course of the prosecution, the government requested a court order under the Stored Communications Act compelling Sprint, Graham's phone provider, to disclose 221 days of historical cell site location information (CSLI). Graham moved to suppress the CSLI, arguing that the warrantless acquisition of location information is an unconstitutional search. A Fourth Circuit panel held the order violated the Fourth Amendment. The case is now being reheard en banc. We argued that the Fourth Circuit "should consider the First Amendment interests that warrantless acquisition of communications information implicates when it resolves the Fourth Amendment questions presented by Graham’s appeal." The Fourth Amendment is rooted in the Framers' concerns about safeguarding printers and the press. As a result, Fourth Amendment protections must be applied with rigor when First Amendment rights are at stake.

Bankruptcy judge changes his mind on Bloomberg order

Press Release | January 20, 2016
January 20, 2016

In a hearing today, U.S. Bankruptcy Judge Christopher S. Sontchi said he should have granted Bloomberg’s request to be heard on an expedited basis in objecting to his investigation of Bloomberg reporters’ sources. Bloomberg objected to the scope of the investigation of a possible violation of a confidentiality order in a bankruptcy case after the judge required 123 individuals involved in the case to file declarations about contacts with any Bloomberg reporters about the debtor in the previous 60 days.

Sontchi has now said he will hear Bloomberg’s objections to his initial order on Friday morning.

Bankruptcy court continues investigation into Bloomberg sources; two hearings scheduled for today

Press Release | January 20, 2016
January 20, 2016

A federal bankruptcy judge in Delaware yesterday denied a motion by Bloomberg News, without oral argument, to suspend an overreaching investigation into contacts between its reporters and the parties in a bankruptcy proceeding.

The court’s sweeping order demanded all parties reveal knowledge of any contacts with Bloomberg reporters over the previous 60 days, which could affect contacts unrelated to the three stories the court identified as containing certain information covered by a protective order.

Bloomberg immediately appealed to the federal district court, but the district court declined to act yesterday.

Reporters Committee leads coalition objecting to bankruptcy court investigation of Bloomberg sources

Press Release | January 18, 2016
January 18, 2016

A Delaware bankruptcy judge’s order demanding that more than 100 individuals in a case before him disclose all their contacts with any Bloomberg reporters in the last 60 days is overly broad and interferes with reporters’ First Amendment freedoms, the Reporters Committee argued in a letter to the judge on behalf of a media coalition.

U.S. Bankruptcy Judge Christopher S. Sontchi issued the order last Thursday, demanding that a long list of individuals associated with the debtors and creditors in the bankruptcy of Molycorp, Inc., disclose within 5 days any contacts with Bloomberg reporters, or any knowledge of anyone else’s contact with those reporters.

In re Molycorp, Inc.

January 16, 2016

A Delaware bankruptcy judge demanded that more than 100 individuals involved in the bankruptcy proceedings concerning Molycorp Inc. disclose all their contacts with any Bloomberg reporters in the last 60 days, after he saw several articles that he felt contained information subject to a confidentiality order. The Reporters Committee argued in a letter to the judge on behalf of a media coalition that the order is overly broad and interferes with reporters’ First Amendment freedoms.

Court finds reporter's privilege not waived after complying with portion of subpoena

Michael Lambert | Reporter's Privilege | News | December 18, 2015
December 18, 2015

What constitutes a waiver of the reporter’s privilege is largely unchartered territory for courts, leaving journalists with little case law to rely on when determining whether to respond to subpoenas.

This week a California federal court shed light on the scope of waiver by recognizing a journalist’s right to refuse to produce unpublished notes even after disclosing some components of her reporting. The court also held the defendant did not overcome the qualified reporter’s privilege because it did not exhaust alternative means for obtaining the requested information.

The shield law issue emerged out of a class action lawsuit filed in 2014 by the estates of 78 miners who died in a 1968 explosion at the No. 9 mine in Farmington, West Virginia. The plaintiffs sued the Consolidation Coal Company, owners of the mine, for fraud, concealment, and nondisclosure.