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Lawyers who traditionally rely on the First Amendment to battle subpoenas build the case for a common law privilege From…

Lawyers who traditionally rely on the First Amendment to battle subpoenas build the case for a common law privilege

From the Spring 2005 issue of The News Media & The Law, page 20.

By Grant Penrod

In recent attempts by government and civil litigants to compel reporters to reveal their confidential sources, two sources of protection &#151 a privilege based on the First Amendment and one based on statutory shield laws &#151 are frequently discussed.

But in federal courts &#151 where journalists are most under attack &#151 there is no shield law. And protection under the First Amendment has been uncertain since the U.S. Supreme Court’s fractured 1972 decision in Branzburg v. Hayes that no privilege exists for reporters in grand jury investigations. Most federal courts since then have found that some privilege exists in other contexts, but the finding is not unanimous and is hotly contested.

A third source of protection has worked its way quietly through the federal courts recently, achieving some success. Federal Rule of Evidence 501 &#151 one of the rules governing the admissibility of evidence in the federal courts &#151 says that privileges from testifying in federal court “shall be governed by the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience.”

The “common law” is law that evolves or develops as a result of judicial decision. The system, adopted from British courts when the United States achieved independence from England, has long been the basis for much of this country’s civil law. Various courts build upon previous decisions, eventually developing rules that form a consistent body of law.

In Branzburg, the Supreme Court addressed whether a reporter’s privilege exists under common law. Noting that at the time only 17 states provided statutory protection for journalists, the court declined to extend such protection in the federal courts. But much has changed since then.

All but one or two states recognize some privilege for journalists protecting their confidential sources. Thirty-one states and the District of Columbia have enacted shield laws, and most of the remaining states have judicial rulings recognizing a privilege, either through the First Amendment or common law. Hawaii’s appellate courts have not addressed the issue since Branzburg was decided, and Wyoming’s appellate courts have never addressed it.

Congress enacted Rule 501 in 1974 after originally trying to define individual privileges that would be recognized in the federal courts, but abandoned that approach in favor of one that allows the courts to develop their own privileges “in light of reason and experience.”

Although a few federal courts recognized a common law reporter’s privilege under Rule 501, a U.S. Supreme Court decision in Jaffee v. Redmond in 1996 bolstered the idea. The court ruled 7-2 that “reason and experience” compelled the recognition of a privilege for psychotherapists and licensed social workers in the federal courts under Rule 501. The court reasoned that the psychotherapist-patient relationship serves important public and private interests that outweigh the need for evidence in court cases, and &#151 noting that the privilege had been recognized by courts or legislatures in all 50 states &#151 that the states had reached consensus on the privilege.

Following Jaffee, media lawyer Theodore J. Boutrous, a partner at Gibson, Dunn & Crutcher, published an article in the American Bar Association’s Communications Lawyer stressing that the common law approach deserved more attention.

“It occurred to me that because of the way Branzburg had played out the analysis had leaped to the First Amendment,” Boutrous said recently. “That really is sort of an unnecessary leap in some ways because Congress had squarely and expressly told the federal courts to develop privileges under Rule 501. So you have this affirmative grant of authority and a framework that Jaffee really significantly clarified that fit like a glove when applied to the reporter’s privilege.”

He used that argument in a friend-of-the-court brief he wrote on behalf of 23 news media organizations, including The Reporters Committee for Freedom of the Press, in In re Grand Jury Subpoenas, the case involving Special Prosecutor Patrick Fitzgerald’s attempts to determine who leaked the identity of CIA agent Valerie Plame’s identity to syndicated columnist Robert Novak. Reporters Judith Miller of The New York Times and Matthew Cooper of Time magazine have been held in contempt for refusing to testify in the investigation.

On Feb. 15, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., unanimously ruled that Miller and Cooper had no privilege under the First Amendment, but split three ways on the existence of a common law privilege.

Judge David S. Tatel wrote that a qualified reporter’s privilege should be recognized under Rule 501 because the public and private interest in protecting the free flow of information to the public outweighed litigants’ need for relevant evidence, and because of the near-unanimity among the states on the issue. Tatel ruled, however, that Fitzgerald had overcome the qualified privilege.

Judge David B. Sentelle rejected a privilege under Rule 501 because he believes that it had been foreclosed by Branzburg. Judge Karen L. Henderson did not decide whether a privilege existed under Rule 501 because she believes that if a privilege did exist under the common law, it would be a qualified privilege that Fitzgerald had overcome.

Although the endorsement was lukewarm, only one judge rejected the common law privilege while all three had rejected one based in the First Amendment.

Miller’s and Cooper’s case has been appealed to the U.S. Supreme Court. Boutrous’ partner, Ted Olson, recently took over Cooper’s appeal. He told Editor & Publisher that he may base his defense before the high court on the common law privilege, while Floyd Abrams, who represents Miller, will continue with a First Amendment-based defense. “You might look at it as a two-heads-are-better-than-one approach,” Olson, a former U.S. solicitor general, told E&P.

A week after the D.C. Court of Appeals ruling, the common law privilege landed a more definite endorsement when U.S. District Court Judge Robert W. Sweet of Manhattan held that a qualified common law privilege based on Jaffee and Rule 501 prevented the subpoena of two journalists’ telephone records in New York Times v. Gonzales. Fitzgerald, acting in his capacity as U.S. attorney for Chicago, subpoenaed records from the Times‘ telephone company to determine if someone in the government leaked plans of a raid on a charity suspected of supporting terrorism to Times reporter Miller and her colleague Philip Shenon.

A common law privilege provides a private benefit to investigative reporters by permitting them to secure information from confidential sources, and a concurrent public benefit by furthering the “full and unhampered reporting of the news, ” Sweet wrote. Those interests outweighed the loss of evidence to litigants, he ruled, because if the privilege was not recognized, fewer sources would provide reporters with information making it unavailable to litigants or the public. Sweet also pointed to the near-unanimity of the states in recognizing a privilege.

The common law privilege has also appeared in another case before the U.S. Court of Appeals in Washington, D.C., Lee v. Department of Justice. Former Los Alamos nuclear scientist Wen Ho Lee is suing the Justice Department under the Privacy Act for disclosing information about him to the public without his consent. A federal trial court ordered six reporters to testify in the case, and their appeal, which was argued on May 9, has not yet been decided.

Appeals in one or all three of the cases are likely to further develop the idea of a reporter’s privilege based on the common law, and it may prove a way for journalists to protect their confidential sources without having to resort to the more troublesome holding of Branzburg.

Scope of the common law privilege

Once it has been determined that a common law privilege exists for reporters, there remains the problem of figuring out who and what is protected by it &#151 sources, notes, documents or other material &#151 and whether the privilege should be absolute or qualified. State shield laws differ widely in their scope, and the appropriate level of coverage is a matter of significant debate among those pushing Congress to pass a federal shield law.

Boutrous argues that the protection should be absolute for sources &#151 confidential or not, and qualified for unpublished information. “Particularly where you’re talking about confidential sources, unless the sources and reporters can depend in most cases that the privilege will be respected, that will undermine the whole reason for granting the privilege,” he said.

The Supreme Court’s language in Jaffee also supports an absolute privilege. In rejecting a qualified privilege for psychotherapists, the court’s opinion, authored by Justice John Paul Stevens, held that an “uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”

But none of the four judges who examined a common law reporter’s privilege under Rule 501 and Jaffee have found that it should be absolute. Tatel and Sweet endorsed only a qualified privilege, and both Sentelle and Henderson agreed that if they were to recognize a privilege it would be qualified. “While the resulting deterrent effect may cost the press some leads, little harm will result, for if the disincentives work as they should, the information sources refrain from revealing will lack significant news value in the first place,” Tatel wrote in In re Grand Jury Subpoenas.

Media lawyer Katherine Fallow, a partner with Jenner & Block in Washington, D.C., who wrote a friend-of-the court brief for the Reporters Committee and 23 other news organizations arguing for a common law reporter’s privilege in Lee v. Department of Justice, said that time has shown that a qualified privilege “has worked pretty well,” and pragmatically, the scope of the privilege is a matter of what protection the courts will recognize.

She suggests a similarly pragmatic approach to determining who a common law privilege would cover.

“It will require some thinking about how you determine whether someone is functioning in a role that is consistent with the public interest served by the federal common law privilege,” she said, adding that “that is how the common law deals with a lot of things. You approach it on a case-by-case basis, and courts are well equipped to deal with that.”

Boutrous agrees. “All these years with the reporter’s privilege being recognized in legislatures and courts there really hasn’t been a problem in terms of deciding who should be entitled to the privilege,” he said. “It’s really a red herring to suggest that that should limit the ability of the courts to recognize a privilege where it is indisputable that the people asserting the privilege should get it.

“No one disputes that if there is a reporter’s privilege it would apply to Matt Cooper and to Judith Miller. If there is line drawing that needs to go on in the future, that’s what courts do every day,” he added. “That’s really what the common law is all about.”

Common law and the First Amendment

Some critics of the push to enact a federal shield law have argued that relying on anything other than the First Amendment to protect journalists should be avoided because it acknowledges that the First Amendment isn’t enough. Others are hesitant to rely on courts or legislatures for protection not rooted in the Constitution for fear that the protection can be taken away as easily as it was given.

“You can look at the First Amendment argument and the federal common law argument as actually complimentary,” Fallow said. She explained that the First Amendment is an important part of the adoption of a common law privilege because of the Jaffee test’s reliance on the privilege serving the public interest, so it works with rather than against a privilege based in the First Amendment.

Boutrous concurs, pointing out that the common law is just another way of implementing First Amendment protection. “I don’t see any drawbacks to the common law approach because it really is so closely linked to the First Amendment argument, but it also has the advantage of this express congressional authorization,” he said.

Another possible tension between the First Amendment and a common law privilege was illustrated by Judge Sentelle at oral argument in In re Grand Jury Subpoenas when he pointed out that Jaffee involved licensed psychotherapists and social workers, and that government licensing was something that most journalists find offensive to a free press.

Courts can easily apply a common law privilege without resorting to licensing, Boutrous said. “The federal courts have looked at this in the past and they’ve had no trouble.”

Fallow thinks that the differences between a psychotherapist’s privilege and a reporter’s privilege actually make the argument for recognizing a common law reporter’s privilege stronger. “In Jaffee, there was a public interest served by ensuring the mental health of the citizenry, which is a public benefit, but it is focused more on private individual relationships,” she explained. The reporter’s privilege, on the other hand, “seems more clearly to be a true public benefit grounded on the First Amendment.”

Both Fallow and Boutrous see the common law as a valuable tool in protecting journalists’ confidential sources, and one that will continue to gain traction with the courts.

“It seems to be gaining steam,” Fallow said. “I think it has a lot of appeal, you can see that in Tatel’s decision.”

Boutrous agreed. “If courts apply the principles of the Jaffee v. Redmond case and Rule 501 correctly, the case for a federal common law privilege is overwhelmingly strong,” he said.