Introduction -- Legislative protection of news sources -- The constitutional privilege and its limits

The use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process.

Apart from diverting staff and resources from newsgathering, subpoenas issued to the news media present serious First Amendment problems. The forced disclosure of sources or information threatens the constitutional right to a free press by undercutting the media’s independence from government and deterring coverage of matters likely to generate subpoenas. Indeed, the U.S. Court of Appeals in Philadelphia (3rd Cir.) has recognized that “the interrelationship between newsgathering, news dissemination, and the need for a journalist to protect his or her source is too apparent to require belaboring.”¹

Legislative protection of news sources

Thirty-nine states and the District of Columbia have adopted shield laws affording the media varying degrees of protection against subpoenas.² Some shield laws protect reporters from forced disclosure of their confidential news sources, but not of unpublished material. Other laws provide absolute or qualified protection according to the type of legal proceeding involved (civil or criminal) or the role of the journalist in the proceeding (defendant or independent third party).

In many states without shield laws, state courts have recognized some form of qualified privilege. In others, state constitutions may include “free press” provisions, which are similar to the U.S. Constitution’s First Amendment protections, and afford qualified protection. Wyoming is the only state where neither the courts nor legislature has recognized a privilege to protect unpublished sources or information.

Journalism organizations have long been fighting for a federal reporter’s privilege. At the end of 2010, shield bills had passed the House of Representatives and been approved by the Senate Judiciary Committee, but disagreement among senators about who would qualify as bona fide journalists entitled to protect their confidential sources has prevented passage by the full Senate.

Reporters should become familiar with the scope of their state’s privilege to withhold confidential sources and information, as recognized by a shield law, state constitution or in case law. The Reporters Committee maintains a compendium of reporter’s privilege laws in the states and federal circuits at www.rcfp.org/privilege.

The constitutional privilege and its limits

The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes.³ The Court ruled that reporters have no First Amendment right to refuse to answer all questions before grand juries if they actually witnessed criminal activity.

Justices Lewis Powell and Potter Stewart, however, recognized a qualified constitutional privilege in two separate opinions. Powell, while agreeing with the majority, wrote a concurrence arguing that reporters would still be able to contest subpoenas if they were issued in bad faith, or if there were no legitimate law enforcement need for the information. Stewart, dissenting, made a much stronger case for a robust privilege, arguing that anything less would allow officials to “annex” the news media as “an investigative arm of government.” Two other justices joined Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the notion of a qualified constitutional privilege a majority.

Since Branzburg, many federal and state courts have acknowledged the existence of some form of qualified constitutional privilege. Where the privilege is recognized, the courts generally use a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes “to the heart of the case” and whether it could be obtained from other sources besides the media.

The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the reporter was a witness to a crime. When an important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify.

In recent years, federal courts have shown greater reluctance to recognize a privilege under the First Amendment. Beginning in 2003, the U.S. Court of Appeals in Chicago (7th Cir.) has said twice that the privilege does not exist.⁴ In 2005, the U.S. Court of Appeals in the District of Columbia (D.C. Cir.) said a grand jury’s need for information outweighed any reporter’s privilege after New York Times reporter Judith Miller refused to testify about her sources for a story about CIA operative Valerie Plame.⁵ Miller spent 85 days in jail before agreeing to testify.

In criminal trials, many courts apply the three-part balancing test to determine whether the defendant’s Sixth Amendment right to confront all witnesses against him outweighs the reporter’s need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, or to the accused’s defense.

Additionally, many states will not allow reporters to assert shield law protections to avoid testifying if they witness criminal activity.⁶

A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts frequently find that the public interest in protecting the reporter’s news sources outweighs the private interest in compelling the reporter’s testimony.

In libel cases, however, reporters who are defendants may face demands to reveal their confidential sources, particularly if the contested information is the basis of the allegedly defamatory reports.

Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations.

A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory.

The plaintiff also must prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant’s identity is needed to properly prepare the case.

Courts also have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.⁷

Notes:

1. Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979).

2. Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Washington and Wisconsin. New Mexico and Utah courts recognize a privilege through court rules, not state statutes.

3. Branzburg v. Hayes, 408 U.S. 665 (1972).

4. McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) (rejecting a reporter’s privilege, at least when the source is not confidential). In 2007, the Seventh Circuit stated explicitly what it stated more subtly in McKevitt: “There isn’t even a reporter’s privilege in federal cases.” United States Department of Education v. National Collegiate Athletic Ass’n, 481 F.3d 936 (7th Cir. 2007).

5. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), superseded by 438 F.3d 1141 (D.C. Cir. 2006) (per curiam).

6. See, e.g., Florida v. Davis, 720 So.2d 220 (Fla. 1998); Minnesota v. Turner, 550 N.W.2d 622 (Minn. 1996).

7. See, e.g., Colorado v. Thill, No. 98-cr-621 (D. Colo. Feb. 5, 1999) (order granting motion to exclude evidence regarding reporter’s telephone records obtained from third parties); Philip Morris Cos., Inc. v. ABC, Inc., 23 Media L. Rptr. 1434 (Va. Cir. Ct. 1995) (order protecting reporters’ records held by third parties).