From the Hotline
From the Spring 2005 issue of The News Media & The Law, page 38.
The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.
The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.
Q: I am an online journalist and think I should be covered by the reporter’s privilege from being compelled to testify. Should online journalists and “bloggers” be covered, and what should I be aware of while I’m gathering news that could affect my ability to claim the privilege?
A: The Reporters Committee believes that all journalists should be protected by a privilege against compelled disclosure of material obtained while gathering and reporting news, regardless of the medium used to disseminate the information.
The question of who is a journalist, however, becomes difficult to answer in many situations. Some courts and legislatures choose to avoid this thorny issue by limiting the privilege to those who are employed by traditional media organizations, such as newspapers, magazines and television stations. But a few federal appellate courts have adopted a standard based on the intent and the actions of the journalist. This definition comes from the 1987 opinion of the U.S. Court of Appeals in New York (2nd Cir.) in von Bulow v. von Bulow. The court held that “whether a person is a journalist, and thus protected by the privilege, must be determined by the person’s intent at the inception of the information-gathering process,” and that “an individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”
For more perspective on this issue, we turned to an attorney who handles subpoena controversies for journalists, and a law professor who studies similar issues.
Laura Handman, Davis Wright Tremaine LLP, Washington, D.C.:
With the growing influence of blogs, more attention is being paid to the rights and responsibilities of bloggers. Judge David Sentelle brought the question to the forefront in his concurring opinion in the case involving Matt Cooper and Judy Miller, asking “Does the [reporter’s] privilege also protect the proprietor of a Web log, the stereotypical ‘blogger’ sitting in his pajamas at his personal computer posting on the World Wide Web … to inform whoever happens to browse his way?” 397 F.3d 964, 979 (D.C. Cir. 2005) (Sentelle, J., concurring). While the question was left unresolved, it demonstrates that bloggers are no longer operating in the relative obscurity they have heretofore enjoyed. The law, as applied to bloggers, is still to be articulated.
There is no reason bloggers should not have the same rights as traditional journalists — under the right circumstances. If bloggers seek the rights accorded to journalists, including the reporter’s privilege, bloggers can demonstrate their “intent” to be a journalist under the von Bulow test by acting more like traditional journalists. Indicia of intent would be following the practices of responsible journalists — asking for comment from the subject of their stories, obtaining corroborating information, identifying on-the-record sources, distinguishing between advocacy and the objective reporting of facts, publishing what is newsworthy but avoiding the purely private, disclosing any personal interest in the subject matter and correcting mistakes promptly. In other words, bloggers should exercise editorial judgment, if they claim the protections afforded to traditional journalists.
If bloggers don’t follow the standards that print and broadcast journalists follow, their argument for being covered by the reporter’s privilege may weaken. It also threatens the rights and protections extended to traditional journalists. Unable to draw meaningful distinctions, judges, just as Judge Sentelle did in the Cooper-Miller case, may deny protections to all journalists. Juries and the public at large may be more likely to view all those who “report,” be they bloggers or traditional journalists, with the same jaundiced eye and doubt the accuracy and fairness of the reporting.
This is not to say that the more casual genre and context of blogs should not be taken into account in understanding the meaning of the words posted, whether they are defamatory statements of fact and the standards of responsible journalism that would apply. All of these would be tempered by the less restrictive milieu in which bloggers communicate.
Lauren Gelman, Associate Director, Center for Internet and Society, Stanford Law School:
The First Amendment recognizes the important role an unfettered press plays in fostering democratic discourse. The medium in which a reporter publishes is irrelevant and should not be a factor in determining which journalists may invoke their constitutional protections. “Liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” Branzburg v. Hayes, 408 U.S. 665, 704 (1972). Courts have recognized that an important part of protecting a free press is guarding the journalist’s ability to use sources that will speak only on condition of anonymity. Thus the “newsgatherers’ privilege” protects reporters from having to reveal their sources, and some states like California have media shield laws that prevent courts from holding reporters in contempt for refusing to turn over anonymous sources. Online publishers should be able to invoke these privileges under the same conditions as reporters who publish in other media.
However, the “newsgatherers’ privilege” is a qualified one. This means that it does not apply in every case. For example, courts have found that privilege can be overridden by a competing public interest—such as the public’s interest in compliance with grand jury subpoenas, or a criminal defendant’s interest in confronting witnesses against him. A California Superior Court judge recently held that the privilege does not apply to disclosure of a trade secret. That case is currently on appeal, and over two dozen online publishers and organizations submitted a friend-of-the-court brief arguing that whatever the outcome, the privilege should apply equally to all reporters who meet the von Bulow test, no matter what media they publish on. If the Court adopts that standard, all reporters — no matter where they publish — will be able to invoke the privilege if their intent at the inception of the newsgathering process is to disseminate the information to the public. This is the standard all journalists will need to keep in mind when they promise sources confidentiality in the course of their reporting.
Q: A provision of the employment contract between my city’s government and its town manager defines information relating to his background and future performance as confidential. The government referred to this provision in refusing my records request. Can it really rely on a contract to claim that the data is exempt from records disclosure requirements?
A: No. Whether government records are confidential — and therefore exempt from disclosure obligations — is a matter of statutory definition, not contractual labels drafted by the government itself.
Just this past year, a similar situation to yours occurred in New York, where the Village of Afton withheld the police chief’s actual employment contract citing a confidentiality clause where the village had promised not to publicize its terms. The requestor asked the New York Committee on Open Government to weigh in on the issue, and Executive Director Robert Freeman advised that the confidentiality provision “has no impact on the public’s right to access.” (See article on page 12 about the role of such advisory committees in access disputes.)
The problem also regularly arises when the government contracts public works out to private firms who want to shield their documents from competitors’ eyes, but the resolution of the conflict is the same here, too. For example, the Association of County Commissioners in Georgia publishes a guide on its constituents’ openness obligations advising that companies must understand that the government can only treat documents as confidential to the extent permitted by the open records law.
New York and Georgia are just two states among 50, of course, but the question has been tested many times, and it’s clear that governments can only honor contractual promises of secrecy to the extent that they are consistent with open records law.