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Following an unfavorable decision in the Seventh Circuit, where do federal appeals courts come down on a qualified reporter’s privilege?…

Following an unfavorable decision in the Seventh Circuit, where do federal appeals courts come down on a qualified reporter’s privilege?

From the Fall 2003 issue of The News Media & The Law, page 15.

By Kirsten Murphy

What started out as a simple case involving three Chicago journalists and a subpoena for their work turned into a major federal appellate court decision that could have repercussions for the reporter’s privilege nationwide.

Tapes of conversations the three journalists had with a FBI informant were subpoenaed by an accused terrorist standing trial in Ireland. The journalists argued that a reporter’s privilege protected them from giving up their tapes; a federal district court ruled otherwise.

The reporters sought an emergency stay from the U.S. Court of Appeals in Chicago (7th Cir.), but were rejected within hours. Yet even after the three finally turned over their tapes, an appellate panel of the Seventh Circuit unexpectedly released an opinion that struck at the very heart of a reporter’s privilege.

Most federal circuit courts recognize some form of a reporter’s privilege, stemming from the Supreme Court’s 1972 splintered decision in Branzburg v. Hayes. The Seventh Circuit panel, however, flat-out rejected the accepted idea of a constitutionally based privilege. Worse is the sweeping view taken by the court, which reached out to attack the more generous privileges granted by other circuits.

In Branzburg, the Supreme Court narrowly decided against providing reporters the privilege of refusing to respond when called to testify before grand juries conducting criminal investigations. However, the 5-4 decision depended on the vote of Justice Lewis Powell, who sided with the majority while writing his own concurrence favoring a case-by-case privilege. Powell envisioned a judiciary that struck “a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.”

The journalists involved in the recent Seventh Circuit ruling have opted not to seek review by the Supreme Court, saying it is better to have bad law in just three states — Illinois, Wisconsin and Indiana — than the whole country. The ability of a reporter, free from government intrusion, to keep a promise of confidentiality lives on. But to what extent, and for how long, largely depends on which circuit court is applying the law.

The McKevitt Decision

On July 3, Abdon Pallasch and Robert C. Herguth, of the Chicago Sun-Times, and Flynn McRoberts, of the Chicago Tribune, were ordered by a district court judge to give up tapes of conversations they had with American truck driver David Rupert. The three were working on a book that was to be based on the experiences of Rupert, who served as a spy for the FBI in the Irish terrorist group, the Real IRA.

The tapes were initially subpoenaed by lawyers for accused terrorist leader Micheal McKevitt for use in cross-examining Rupert during McKevitt’s trial in Ireland. The reporters sought to quash the subpoena, but U.S. District Judge Robert A. Guzman ordered the tapes to be released.

The reporters sought a stay from the Seventh Circuit, which denied the request within hours. So with the advice of their attorneys, the reporters made the strategic decision to abide by the district court’s order. Worried that the federal appeals court — if faced with the facts of their case — would create a bad precedent that could hurt journalists working in the Seventh Circuit, the reporters turned over the tapes. The FBI even prescreened the tapes before releasing them to McKevitt’s attorneys.

Yet despite their efforts, a three-judge appellate panel still decided to issue an opinion expressing perhaps the most radical view of a constitutionally based reporter’s privilege by any federal circuit in the country. Written by Judge Richard Posner and released on Aug. 8, the panel dismissed any argument for a constitutionally based reporter’s privilege, stating that subpoenas to journalists should only be required to meet the general requirement of reasonableness, applicable to all subpoenas.

“We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist,” Posner wrote.

Posner took another swipe at the privilege as it applies to non-confidential sources, stating, “When the information in the reporter’s possession does not come from a confidential source, it is difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure.”

Courts that have extended the privilege to non-confidential sources are “skating on thin ice,” according to Posner.

The decision means that journalists in Illinois, Wisconsin and Indiana may no longer be able to shield their sources, confidential or otherwise, in federal court.

In his opinion explaining the rejection of the reporters’ motion for an emergency stay of the district court order, Posner expressed surprise that, in light of the Supreme Court’s splintered decision in Branzburg v. Hayes, so many circuit courts have carved out a generous privilege for journalists. Prior to Posner’s decision, the Seventh Circuit Court of Appeals had not weighed in on the issue of a constitutionally based reporter’s privilege. However, district courts in the Seventh Circuit did recognize a qualified privilege.

Kenneth E. Kraus, an attorney at Schopf & Weiss in Chicago who has handled reporter’s privilege cases, said McKevitt presented bad facts, especially the fact that the reporters were working on a book deal with a source who stated that he did not object to the release of the tapes. Although Kraus says he doesn’t believe Posner’s decision is the end of the reporter’s privilege in the Seventh Circuit, “it’s not a good beginning.”

Lawyers for the three Chicago reporters petitioned for a rehearing before the entire Seventh Circuit. The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief filed on behalf of 26 media organizations, which argued that Posner’s opinion is “far-reaching and radical” and a “stunning break from long-standing precedent recognizing the federal qualified reporter’s privilege.”

Among the more disturbing aspects of Posner’s ruling, says Carolyn Foley, an attorney at Davis Wright Tremaine in New York who worked on the friend-of-the court brief, was that it was made without the benefit of briefs or oral arguments, as the request was for an emergency stay that did not fully address the merits of the issue. Nonetheless, on Oct. 16, the court denied the reporters’ motion for rehearing.

Said Pallasch, “I hope it doesn’t inaugurate an open season on reporters where everyone starts subpoenaing our notes.”

Bad Federal Circuit Law

While every other federal appellate court has recognized some form of a reporter’s privilege, a few circuits define the privilege narrowly. The U.S. Court of Appeals in New Orleans (5th Cir.) has ruled that the privilege is not available in criminal cases or grand jury investigations where the information sought is non-confidential. In the 1998 case United States v. Smith, the court found that reporters must produce non-confidential information in a criminal case, unless the reporter can prove government harassment.

In Smith, a suspect in an arson case contacted a local television station in New Orleans to tell his side of the story. During a videotaped interview with a reporter, the suspect accused others of setting the fire. The government requested a copy of both the televised and un-televised portions of the videotape. The station objected, claiming a reporter’s privilege under the First Amendment.

The Fifth Circuit roundly rejected the station’s arguments for a qualified reporter’s privilege. Branzburg applies to criminal cases as well as grand jury investigations, the court stated, and offers only a shield against government harassment. “Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen,” the court wrote.

In addition, the Smith ruling indicates that even in civil cases non-confidential information won’t be protected. “We have never recognized a privilege for reporters not to reveal non-confidential information,” the court stated. “In fact, this court has theorized that confidentiality is a prerequisite for the newsreporter’s privilege.”

The Fifth Circuit has also made clear that reporters are entitled to very little protection from compelled disclosure of confidential sources in grand jury proceedings. In a recent, unpublished opinion, In re Grand Jury Subpoenas, a panel of the court rejected freelance writer Vanessa Leggett’s privilege claim without considering whether the information sought was confidential or not. Leggett was held in contempt of court and served 168 days in jail in 2001 for her refusal to give up confidential information in response to a grand jury subpoena.

Good Federal Circuit Law

Most circuit courts have carved out a generous privilege for journalists. As Damon Dunn, the attorney representing Robert Herguth, of the Chicago Sun-Times, in McKevitt states: “Balance of the law out there is a firm indication that the majority of federal judges recognize the need for this privilege.”

U.S. Appeals Courts in Boston (1st Cir.), New York City (2nd Cir.) and Philadelphia (3rd Cir.) recognize a qualified privilege, limiting the circumstances under which a reporter may be compelled to disclose non-confidential information in a criminal trial.

The First Circuit decided in U.S. v. LaRouche Campaign that although identifying First Amendment interests in non-confidential information is “a more elusive task” than in confidential information, shielding non-confidential information serves important First Amendment interests.

The case, decided in 1988, arose when NBC objected to a subpoena requesting a videotaped interview with a key government witness in the criminal prosecution of 1984 presidential candidate Lyndon LaRouche. The trial judge ordered NBC to produce the tape, including the “outtakes” from the interview, for the court’s review. NBC refused, asserting a reporter’s privilege in non-confidential, unpublished materials.

The First Circuit — representing Massachusetts, Maine, New Hampshire, Rhode Island and Puerto Rico — agreed with the network that First Amendment interests were at stake, even though the information sought was not confidential.

“We discern a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes and other unused information, even if non-confidential, becomes routine and casually, if not cavalierly, compelled,” the court reasoned.

The court recognized that subpoenas cut into the business of the press by consuming time and resources, and as Justice Lewis Powell warned in Branzburg, the government is not permitted to “annex the news media as an investigative arm of the government.”

In the Second Circuit, Gonzales v. National Broadcasting Co., decided in 1999, affirmed that unpublished, non-confidential information is protected by a reporter’s privilege in New York, Connecticut and Vermont. Although Gonzales was a civil case, the test used to determine First Amendment protection applies in criminal cases as well.

In Gonzales, a Latino couple brought a civil rights claim against a Louisiana deputy sheriff for pulling their car over on a highway. Both parties to the suit sought to obtain videotapes from an NBC undercover investigation of unwarranted stops of motorists in Louisiana. Although NBC’s privilege claim was overcome by the parties’ need for the evidence, the court ruled that a qualified privilege protects non-confidential information.

The court noted the burden subpoenas place on the press, and that “permitting litigants unrestricted, court-enforced access to journalists’ resources would risk the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.”

A Look Ahead

Another major battle over the reporter’s privilege may eventually reach the U.S. Court of Appeals in Washington, D.C. On Oct. 9, a federal district court in Washington, D.C., ordered five journalists to reveal their confidential sources for stories they wrote about Dr. Wen Ho Lee, a former nuclear weapons scientist at Los Alamos National Laboratory in New Mexico. The journalists worked for The New York Times, Los Angeles Times, The Associated Press and CNN.

U.S. District Judge Thomas Penfield Jackson denied requests to quash the subpoenas and ordered the journalists to reveal their sources. Jackson applied the reporter’s privilege but found that the privilege was outweighed by Lee’s need for the evidence for use at trial. The identities of the reporters’ sources are central to Lee’s case against several government agencies under the Privacy Act, Jackson wrote, and cannot be obtained elsewhere. Jackson concluded that he had “some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press information that the Privacy Act says they may not reveal.”

As of late October, attorneys for the journalists had not appealed.

Lee, a U.S. citizen born in Taiwan, was indicted in 1999 on 59 felony counts of allegedly copying classified information onto computer tapes. He was never charged with espionage, and the government’s case largely fell apart. Lee pleaded guilty to one charge of mishandling classified information.

Lee brought suit against the U.S. Department of Justice, Department of Energy and the Federal Bureau of Investigation, alleging that officials at the departments and FBI leaked personal information about him to the press while he was under investigation for stealing U.S. nuclear technology secrets for China.

In a parallel case, decided across the hall from Jackson’s court in Washington, D.C., a reporter’s privilege claim won over a subpoena to a reporter in a Privacy Act case. In Tripp v. Department of Defense, U.S. District Court Judge Emmet Sullivan decided on Oct. 2 that a reporter’s privilege applies to journalists working for the military newspaper Stars and Stripes. He granted the reporter’s motion to quash the subpoena, which had been issued by Linda Tripp in her case against the newspaper for printing information she claimed came from her personnel file.

The Department of Justice argued the case on behalf of Stripes reporter Sandra Jontz, because she is a federal employee. This may mark the first time the department has argued in favor of a reporter’s privilege.

The D.C. Circuit currently recognizes a qualified reporter’s privilege that protects against disclosure of confidential sources and other unpublished information. It may be overcome if it is proven that the information sought goes to the heart of the plaintiff’s claim, cannot be obtained elsewhere, and the plaintiff has exhausted all reasonable alternative sources.

But according to Abdon Pallasch of the Chicago Sun-Times, any such ruling — like Posner’s in the McKevitt case — is a weakening of the true role journalists play in society.

“[P]eople should feel comfortable sitting down with a journalist or a writer,” Pallasch wrote in an Oct. 9 Sun-Times editorial, “letting them click on the tape-recorder, and then being able to speak openly without worrying that the tape will be turned over to the FBI or opposing attorneys to be played at a trial.” u