Discussion of source can lead to waiver of privilege

From the Spring 2000 issue of The News Media & The Law, page 11.

Journalists seeking to protect the identities of their confidential sources need to know about the possibilities of inadvertently waiving their privilege.

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Journalists are eyewitnesses to history. Because of their proximity to news events and information, however, lawyers also view them as ideal trial witnesses. They frequently are subpoenaed for testimony, documents, notes, film and tape.

For 30 years, journalists and lawyers have wrangled over the privilege to protect newsgatherers from the threat of subpoenas. Despite the painstaking progress made in securing the privilege, it can be waived in an instant by careless disclosure to a third party.

The U.S. Supreme Court has left it up to the states to construe their own laws to recognize (or not recognize) a reporter’s privilege. (Branzburg v. Hayes.) Today, 31 states have statutes offering varying degrees and categories of security to journalists who become the targets of subpoenas. Fourteen of the remaining 19 states without shield laws have state court protections for journalists.

The protection offered by these shields varies so greatly, it is nearly impossible to draw broad conclusions about how the privileges operate. Some protect journalists from compelled identification of a confidential source; others protect both the identity of a confidential source and confidential information.

Some states also protect unpublished information, such as outtakes and notes, even if it is not designated as “confidential.” Minnesota, for example, shields reporters from providing information in any civil action, unless the civil action in question is a libel lawsuit in which the reporter is a party.

A waiver usually occurs when the privilege holder voluntarily discloses the information or makes some other revelation that effectively eliminates the application of the privilege.

Here are a few examples of cases where courts refused to recognize a reporter’s privilege after reporters voluntarily disclosed information to third parties:

• Washington Post reporter Linda Wheeler wrote several stories in 1986 about a Washington, D.C., police action directed at drug trafficking. She contested a civil court subpoena that sought the identity of a confidential source. The court found that she could not claim a privilege because she had disclosed the identity of her source to two individuals not related to her employer. “In short,” the court said, “what she chose to say to others out-of-court she cannot now refuse to repeat in court.” (Wheeler v. Goulart)

• In a Montana case, the court found a waiver of the statutory privilege ended protection for a reporter’s notes because he took the witness stand and testified at a trial. (Sible v. Lee Enterprises)

• A reporter for The Minnesota Daily college newspaper witnessed an assault on a student while covering a student protest. The reporter wrote about the assault and spoke to the police about what he saw. He identified student Kieran Knutson to the police as the probable assailant. The Daily moved to quash a prosecutor’s subpoena served on the reporter. The trial court refused to quash the subpoena because the reporter had waived whatever privilege he might have had

by voluntarily speaking to the police. (Minnesota v. Knutson)

• WIS-TV reporter Heather Hoopes refused to identify a South Carolina lawyer as a confidential source in a story about the Lexington County Sheriff’s Departments’s secret recording of conversations between lawyers and their clients. When Hoopes refused to testify before a grand jury, it subpoenaed her husband, a federal drug enforcement agent. He revealed the lawyer as his wife’s source.

There are few absolutes reporters can count on when encountering reporter’s privilege issues. But common sense plays a major role in protecting whatever protections may exist for reporters in states that recognize a reporters privilege. The common sense rules include:

• Never identify a confidential source to a third party who does not work for your employer. This includes your spouse. In addition to waiving your privilege, your spouse may be subpoenaed to reveal your source.

• Avoid chummy conversations with law enforcement, prosecutors and defense counsel about information you have gathered about a crime. This applies to conversations with suspects, in particular.

• If you interview someone who is in custody and he or she confesses to a crime, expect a subpoena. Talk to your newsroom’s lawyer before the interview about how to anticipate the legal issues that will surface in your state in this situation.

The Reporters Committee has a wealth of information about subpoenas served on the media. If you need information about your particular state, contact us at (800) 336-4243.

— Lucy A. Dalglish