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This section covers the use of subpoenas to force journalists to disclose their confidential news sources and unpublished information.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

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.

Unreasonable restriction

A gag order imposed on reveals government overreach on Internet speech
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Kimberly Chow

AP Photo/Elizabeth Williams

Threats against U.S. District Judge Katherine B. Forrest by commenters on the web site led to a subpoena and a gag order about the investigation.

A subpoena issued to in June for the identities of six of its commenters raised eyebrows when it was revealed that the U.S. Attorney’s Office followed the subpoena with a highly restrictive gag order on the news organization.

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?
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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
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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
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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
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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.