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This section covers the use of subpoenas to force journalists to disclose their confidential news sources and unpublished information.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

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
News
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.

Montana shield law expanded to forbid government subpoenas of third-party records

Soo Rin Kim | Reporter's Privilege | News | October 22, 2015
News
October 22, 2015

With new amendments to the state shield law, journalists in Montana will not have to worry about electronic communications services turning over reporters's records to the government.

House Bill 207, sponsored by Rep. Daniel Zolnikov, "prohibits government bodies from requesting or requiring disclosure of privileged news media information from services that transmit electronic communications."

The bill was signed into law in April and took effect on Oct. 1 as an amendment to the existing Montana shield law, known as the "Media Confidentiality Act."

Davis v. United States

August 27, 2015

Davis is challenging the constitutionality of a provision of the Stored Communications Act that permits law enforcement to obtain a court order to compel disclosure of historical location information by a cellular phone service provider. The en banc U.S. Court of Appeals for the Eleventh Circuit ruled that the disclosure was not a search for purposes of the Fourth Amendment. Davis is seeking a writ of certiorari before the United States Supreme Court. The compelled disclosure of historical location data implicates important First and Fourth Amendment rights. Location data can reveal sensitive, private information, including information about associational and expressive activities that are protected by the First Amendment. Fourth Amendment protections must be applied with particular rigor when First Amendment rights are at stake.

Taking the Fifth to protect a source

Court upholds a reporter's Fifth Amendment right when a criminal act is alleged
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Kimberly Chow

AP Photo

Convertino, shown here in 2005, fought for years to force reporter Richard Ashenfelter to reveal his sources on a Justice Department investigation.

A former Detroit Free Press reporter has finally won an eleven-year fight with a former federal prosecutor over the identity of an anonymous source, and his use of the Fifth Amendment to protect his newsgathering may have repercussions for other journalists protecting their confidential sources.