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Journalist’s
Privilege
Issues
Does the First Amendment require
judges to give journalists special privileges to protect sources?
Do all confidential sources
"dry up" if one is exposed?
Should journalists’
nonconfidential information be protected?
Branzburg v. Hayes
Supreme Court rules 5-4 that
there is no First Amendment privilege allowing journalists to keep source identities
secret in some circumstances.
Branzburg v. Hayes
Majority’s reasoning
Journalists, like all other
citizens, have duty to testify about crimes witnessed.
Privilege would force courts to
determine who is a "journalist."
Privilege would bog down courts.
Branzburg v. Hayes
Justice Powell’s concurrence
Courts still available to
journalists if information sought is irrelevant or does not serve a legitimate need of law
enforcement.
Favored case-by-case approach.
Branzburg v. Hayes
The Stewart dissent
Journalists shouldn’t be
annexed by law enforcement.
Forcing disclosure of sources
would interfere with flow of information to the public.
Branzburg v. Hayes
The Stewart 3-part test
Is the information relevant?
Is there a compelling need for
the information?
Is it available elsewhere?
Branzburg v. Hayes
Reaction to the decision
Lower federal courts followed
Branzburg if journalist witnessed crime or was called by grand jury.
But, lower courts also granted
privilege in other fact situations, following Powell-Stewart opinions.
Journalist’s
Privilege
Journalists more likely to win
If case is civil, journalist not
a party.
In criminal cases not involving
eyewitness testimony if same info available elsewhere.
If subpoena vague, appears to be
designed only to disrupt journalists’ relationships with sources.
Journalist’s
Privilege
Journalists more likely to lose
If source identities needed by
plaintiff in libel case.
If journalist witnessed crime.
If journalist’s information
is relevant and journalist is only source or only convenient source.
Subpoena Incidents
How many subpoenas seek
confidential information?
Reporters Committee studies
1989: 5.1 percent
1991: 3.4 percent
1993: 3.8 percent.
Percentage of news organizations
responding to study that received at least one subpoena: 52.1 percent in `93.
State Shield Laws
First one -- Maryland, 1896
Protect journalists from having
to reveal sources and/or other information in certain circumstances.
30 states and D.C. now have them.
Florida latest, in 1998.
State Shield Laws
Common characteristics:
Define who is a
"journalist."
Define what types of information
are protected.
Spell out how those seeking
information can overcome the privilege (often Stewart 3-part test).
State Shield Laws
Pros and cons
Pros
Privilege spelled out in writing.
May provide greater protection.
Cons
What Legislature giveth …
Specificity can backfire.
Courts take constitutional
privilege more seriously.
Privilege spelled out in writing.
May have greater protection than
courts generally allow.
Cons Less uncertain than
court-created privilege.
Journalists likely to win
If case is civil, journalist not
a party.
In criminal cases not involving
eyewitness testimony if same info available elsewhere.
If subpoena vague, appears to be
designed only to disrupt journalists’ relationships with sources.
Florida’s
Shield Law
Passed by 1998 Legislature
Defines "journalist"
broadly.
But excludes book authors.
Uses Stewart 3-part test.
Frees reporters from having to
testify just to authenticate articles.
Florida’s
Shield Law
Florida Supreme Court interprets
shield law
Kidwell, Frangie, Davis appeals
decided after shield law passes
Court agrees with shield law, but
…
… says trial courts must
also consider due process and fair trial rights of accused, in addition to Stewart test.
Search Warrants
Zurcher v. Stanford Daily (1978)
No First Amendment reason to bar
police from searching newsrooms.
No Fourth Amendment reason to bar
searches of ‘non-parties.’
Search Warrants
Privacy Protection Act of 1980
Reaction to Zurcher
Says police need subpoenas to
search journalists’ work product and documentary materials.
Search Warrants
Work product
Notes, story drafts, mental
impressions, opinions.
Exceptions (searches allowed)
If journalist suspect in crime.
To prevent serious injury or
death.
National security.
Search Warrants
Documentary materials
Videotapes, audiotapes, photos.
Exceptions (searches allowed)
Same as work product, plus …
If information not produced in
response to subpoena.
If police reasonably believe
material will be destroyed, altered or hidden.
Breaching
Confidentiality
Cohen v. Cowles Media Co.
Supreme Court says journalists
could be liable for damages under doctrine of promissory estoppel if break promise of
confidentiality.
Promissory estoppel -- When a
person relies on a clear and definite promise to his/her detriment, resulting in injustice
that can only be remedied in court.
© A.L. Fargo 2001
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