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This section covers the use of subpoenas to force journalists to disclose their confidential news sources and unpublished information.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

Illinois v. Van Dyke (Jamie Kalven)

December 5, 2017

The Reporters Committee and 18 other media organizations filed an amicus brief in support of reporter Jamie Kalven, who was subpoenaed to testify in Illinois v. Van Dyke. Van Dyke is the Chicago police officer on trial for murder in the death of Laquan McDonald, an African American teenager. Kalven's reporting revealed facts about the shooting that contradicted the official police account and ultimately led to the release of a police video of the incident and Van Dyke's prosecution. The brief emphasizes the importance of the reporter's privilege and argues that Kalven is protected by the Illinois Reporter's Privilege Act.

People v. Juarez, In re Robles

October 6, 2017

New York Times reporter Frances Robles moved to quash a subpoena requiring her to testify and provide her interview notes with the suspect in the "Baby Hope" murder case. Robles argues that her testimony and notes are privileged under the New York Shield Law's qualified reporters' privilege for nonconfidential, unpublished information. The trial court denied Robles' motion to quash, the Appellate Division, First Department reversed, and the People appealed to the New York Court of Appeals. The RCFP brief discusses the history of the Shield Law and the importance of the Shield Law's privilege for non-confidential information. It argues that privilege for non-confidential information can be overcome only if the party seeking the information demonstrates that his or her case "virtually rises or falls" based on the information sought.

Reporters Committee files brief opposing journalist's subpoena in Malheur stand-off prosecution

Ariel B. Glickman | Reporter's Privilege | News | February 23, 2017
News
February 23, 2017

The Reporters Committee for Freedom of the Press filed an amicus brief opposing compelled testimony of John Sepulvado, a former reporter with Oregon Public Broadcasting (OPB), which was authorized by Attorney General Jeff Sessions in his first week in office. Sepulvado had interviewed Ryan Bundy, one of the Malheur Natural Wildlife Refuge occupants, about the purpose of the occupation in January 2016.

U.S. v. Patrick, et al.

February 22, 2017

John Sepulvado, a journalist formerly with Oregon Public Broadcasting, was subpoenaed to testify about his interviews with participants in the takeover of the Malheur National Wildlife Refuge in 2016. In support of Sepulvado's motion to quash the subpoena, the Reporters Committee filed an amicus brief in Portland, Ore., stressing the importance of recognizing a reporter's privilege and arguing that compelled testimony compromises the independence of the news media.

Phoenix Newspapers Inc. v. Hon. Reinstein

January 30, 2017

John D’Anna, a reporter for The Arizona Republic, wrote a story several years ago based upon two interviews he had conducted with Father Joseph Terra, a victim of aggravated assault. D’Anna received a subpoena from the criminal defendant, requiring D’Anna to appear in court and produce all notes and materials related to the interview. D’Anna and Phoenix Newspapers, Inc. (“PNI”) filed a motion to quash the subpoena. The trial court denied PNI’s motion to quash, but the Arizona Court of Appeals overturned the trial court’s decision, finding that reporters have a First Amendment qualified privilege against the compelled disclosure of information obtained during newsgathering. The Arizona Supreme Court then accepted review.

Judith Miller case to be re-enacted in D.C. circuit court

Ariel B. Glickman | Reporter's Privilege | News | February 14, 2017
News
February 14, 2017

A court decision that resulted in an 85-day jail stay for reporter Judith Miller will be re-enacted and re-examined this afternoon by a number of prominent attorneys and judges.

The Historical Society of the District of Columbia Circuit will host the examination of the oral argument in In re Judith Miller, a 2004 reporter’s privilege case heard by the U.S. Court of Appeals for the D.C. Circuit. The event, which is part of the historical society’s annual program highlighting a significant issue before the D.C. Circuit, will take place from 4:30 p.m. – 6:00 p.m. in the Ceremonial Courtroom on the sixth floor of the E. Barrett Prettyman U.S. Courthouse.

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.