I. Introduction: History & Background

Several high profile cases -– including one involving the 85-day jailing of a New York Times reporter who defied a court order to reveal her source to a grand jury -– have reshaped the landscape of the reporter's privilege within the D.C. Circuit. These cases have reinforced the existence of a First Amendment privilege in the civil context, all but foreclosed its existence in the grand jury context, and raised the possibility of a federal common law reporter's privilege available in all contexts.

The United States Court of Appeals for the District of Columbia Circuit, and the District Court for the District of Columbia, continue to recognize a qualified First Amendment privilege in civil cases against compelled disclosure of sources and other unpublished information; however, the factors to be considered by the court in determining whether the privilege is overcome have been slightly altered. To overcome the privilege it still must be demonstrated that (1) the party seeking the information has exhausted all reasonable, alternative means of identifying the source and (2) the information goes to the heart of the plaintiff's claim. Lee v. Dept. of Justice, 413 F.3d 53 (D.C. Cir. 2005); see also Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984). However, whether and to what extent the court must engage in a separate balancing of the public's interest in protecting the newsgathering process against the private interest in disclosure remains an active topic of judicial debate. See Lee v. Dept. of Justice, 428 F.3d 299 (D.C. Cir. 2005) (J. Tatel, dissenting and J. Garland, dissenting from denial of rehearing en banc) (Circuit Court split 4-4; dissents assert panel in Lee v. Dept. of Justice, 413 F.3d 53 (D.C. Cir. 2005), failed to balance the public and private interests); Lee v. Dept. of Justice, 401 F.Supp.2d 123 (D.D.C. 2005) (district court holds qualified privilege standard does not include a third factor to balance the public benefits and private harms of forced disclosure); cf. Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (concluding that the plaintiff had "demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter's sources," and suggesting that if the information sought demonstrated government corruption the societal interest in disclosure may overcome the First Amendment protection).

The privilege remains strongest in civil cases where the journalist or news organization is not a party. See, e.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981). The courts also will evaluate the privilege, but accord it somewhat less weight, in civil cases where the press is a party. See, e.g., Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) (affirming District Court order directing journalists to identify sources who were eyewitnesses to events reported on).

The qualified First Amendment privilege is also recognized in enforcement actions by federal agencies, although it is not quite as strong as in the civil context. See U.S. Commodity Futures Trading Commission v. McGraw-Hill Companies, Inc., 390 F.Supp.2d 27 (D.D.C. 2005); U.S. Commodity Futures Trading Commission v. Whitney, 441 F.Supp.2d 61 (D.D.C. 2006).

The D.C. Circuit, however, does not appear to recognize a First Amendment reporter's privilege in the grand jury context. In re Grand Jury Subpoena Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006). The press may still seek protection from the court where harassment or bad faith can be established. See In re Special Counsel Investigation, 332 F.Supp.2d 26 (D.D.C. 2004). Some case law recognizes the privilege in criminal proceedings outside the grand jury context, which cannot be overcome unless the party seeking the information shows a compelling need for the information, see, e.g., United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000), cert. denied sub nom., Ahn v. United States, 532 U.S. 924 (2001) (affirming lower court's granting of reporters' motion to quash subpoena that would have required reporters to reveal sources of story, concluding that reporters' testimony was not relevant to the case); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena from criminal defendant to reporter on ground of "newsman's privilege" because alternative means of obtaining the information existed and the "testimony of the reporter would be far less than necessary to a fair resolution of th[e] case"). But a recent opinion calls into question the application of the privilege in these other criminal contexts. United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) (declining to recognize a First Amendment reporter's privilege in context of criminal prosecution at trial stage).

Although it has yet to command a majority of the D.C. Circuit, recent opinions have raised the hope for the eventual recognition of a federal common law reporter's privilege in both the civil and criminal contexts. District court opinions have rejected the existence of the common law privilege, In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004) (the ruling of Branzburg v. Hayes forecloses this issue); Lee v. Dept. of Justice, 401 F.Supp.2d 123 (D.D.C. 2005) (declining to create a federal common law privilege in civil context), the D.C. Circuit has not ruled on the issue. In re Grand Jury Subpoena Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006) (no need to reach question of whether a common law reporter's privilege exists, because if one existed, it would be overcome in this case). However, Judge Tatel has issued well-reasoned concurrences in the D.C. Circuit that strongly advocate for this privilege. In re Grand Jury Subpoena Miller, 397 F.3d 964 (D.C. Cir. 2005) (J. Tatel, concurring), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006); In re Grand Jury Subpoena Miller, 405 F.3d 17 (D.C. Cir. 2005) (J. Tatel, concurring).