The Progression and Controversies of Reporter's Privilege

Since the mid 1800s, journalists of every medium have long sought and argued for a constitutional right to defend themselves from state and federal investigations, court appearances, orders to reveal confidential source identities and a host of other legal situations and dilemmas. Unfortunately, such protection does not always exist and, in most cases, it is up to the state, in accordance with its statutory laws, to determine whether or not it will enact or provide protection. To gain a full understanding of reporter's privilege, one must first seek to define it on its most basic level, as well as understand its early historical and legal origins.

In his article "The Curious Evolution of Reporter's Privilege," Slate Magazine journalist Stephen Bates recounts the story of the New York Herald's John Nungent, who in 1848 became "the first American reporter incarcerated for refusing to identify a confidential source." [1] When questioned by U.S. senators about his acquiring a "secret draft of a treaty with Mexico," Nungent, a former agent of the U.S. government and later owner-editor of the San Francisco Herald, passionately stated, "I consider myself bound in honor not to answer."

By strict definition, reporter's privilege within the confines of the United States is "a privilege protecting a reporter from a compulsion to reveal information acquired in the course of gathering news." [2] As a qualified (or limited) First Amendment right, reporter's privilege has been recognized by First, Second, Third, Fourth, Fifth, Ninth, Tenth, Eleventh and D.C. Circuits. Currently, 38 states have "adopted shield laws protecting journalists." [3] Although several states have enacted "absolute" shield laws, not all journalists are protected. In fact, history's earliest recorded and most significant court cases ruled that a qualified reporter's privilege did not exist at all. [4] More recent examples, however, say otherwise. The controversial dilemma and question is whether or not journalists should be subject to the same laws that bind the average American citizen, laws that require a citizen to testify before a grand jury and offer evidence and information when asked to do so, particularly in cases of criminal investigations.

There may be no better example in history which has so well laid the framework for the issue of reporter's privilege than the 1972 case of Branzburg v. Hayes, in which Louisville Courier-Journal reporter Paul Branzburg refused to reveal the identities of two sources he interviewed during his investigation of "two young men he watched making hashish [a drug with powerful psychoactive effects similar to other cannabis preparations] near Louisville." [5] As a landmark U.S. Supreme Court decision, the case is the first to raise the question of whether or not a legal "requirement" that a journalist appear and testify in court (state or federal) violates his or her First Amendment right to freedom of speech. With a 5-4 majority, the U.S. Supreme Court would ultimately rule that journalists are to be held to the same standards as the average American citizen in regards to disclosing information previously deemed confidential. In his majority opinion, Justice Byron White wrote that "the consequential, but uncertain burden on news gathering" should not supersede the public's "interest in law enforcement." The Court ruled that there is no reporter's privilege and that, in the case of Branzburg, "requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment." [6]

Few court cases since Branzburg v. Hayes have left as historically significant a footprint. However, there have been several instances in which courts have found themselves faced with the same decisions and issues. Seven years after the Supreme Court's decision in Branzburg, journalist and staff writer Geraldine Oliver of the Delaware County Daily Times found herself appealing to a local district trial court after she was ordered to "identify the sources of her information for a news article she wrote." [7] City of Chester policeman William Riley's candidacy for mayor pitted him against the city's current mayor, Joseph F. Battle, who was up for reelection. Oliver had been assigned to cover the story. After information from Riley's police personnel file was "leaked to the press" and published in the local paper, Riley asserted that the article "contained some inaccurate information, that he never authorized anyone to release such information and that no one asked his permission." After denying that she "observed Mr. Riley's personnel record," Oliver was asked to identify the source of the information, a request with which she refused to comply, citing reporter's privilege. The court found her to be in civil contempt.

The years between Riley v. City of Chester (1979) and a more recent case involving journalists Judith Miller of The New York Times and Matthew Cooper of Time magazine [8] were relatively silent, save for the case of one John A. Senear, "a business agent for Local 587 of the Amalgamated Transit Workers Union in King County [Washington]." [9] Bellevue newspaper the Daily Journal American ran a story featuring "one well place union source" who accused Senear of making a behind-the-scenes bargain with the management staff at Metro, one which would "get the union through the holiday season," so as to avoid worker strikes. The article further suggested that Senear had "encouraged [employee] sickouts" and was trying to swing the deal with Metro "in return for a management job once the contract negotiations had been completed."

Senear would eventually sue the paper for actual malice, although the Daily Journal-American held to the defense that Senear was a "public figure." The paper denied the accusation of actual malice. Despite Senear's attempts to "serve the newspaper with interrogatories," the paper refused to reveal the name and identity of the "well placed union source" who was responsible for the accusation against Senear, as well as the two sources who accused him of encouraging worker sickouts. The Daily Journal-American did, however, reveal the identities of the three people responsible for the accusations that Senear had made a deal to gain a coveted management position within the company. The court here ruled that, although some states have enacted statutory laws granting reporter's the right to keep sources confidential, "this type of legislation has not been enacted in Washington [the hearing took place at the Supreme Court of Washington, En Banc.]. Plaintiff contends that no privilege is found in the First Amendment and that creation of any privilege is a matter for the legislature, not the courts." Here, the original standard set forth by Branzburg v. Hayes was upheld.

The current status of reporter's privilege continues to fluctuate and has transformed into an opinion-based debate, one which is typically at the mercy of the court and, in some cases, the judge. It continues to be a hot topic within legal circles and is more gray than black and white. While courts during the 1970s and 1980s tended to restrict or completely deny reporter's privilege, basing their decisions on Branzburg v. Hayes, recent years have seen court approval of the claim. Two cases in particular will be discussed.

However, in 2005, reporter's privilege once again caught the attention of national news media when previously mentioned journalists Judith Miller of The New York Times and Matthew Cooper of Time magazine refused to comply with grand jury subpoenas after being asked to testify and produce information (reporter's notes, documents, and source identities) relating to the so-called "Plame affair" (often referred to as the "CIA leak scandal" and "Plamegate"). Before a three-judge panel, Cooper and Miller cited a First Amendment reporter's privilege, but were denied by the United States Court of Appeals for the District of Columbia Circuit, who found both reporters to be in contempt of court. After their appeals were rejected by the appellate court, Miller and Cooper sought to take their case to the U.S. Supreme Court. Unfortunately, the Supreme Court would not hear their case and both journalists were sentenced to jail time. Here, as with the countless cases before it, the court "ruled that Branzburg precluded recognition of a journalist's privilege." [10]

It has only been in recent years that this notion of preclusion based on Branzburg has begun to change. For example, last March Western Washington University Professor of Journalism Carolyn Nielsen was subpoenaed and asked to hand over any and all materials used during her 1994 coverage of the trial of young Thaddeus Jimenez, a boy who "was 13 when he was arrested and charged with the fatal street shooting of an 18-year-old Chicago man. Despite a secretly recorded confession by someone else, Jimenez was charged, convicted after two trials and sentenced to 45 years in prison." [11] A group of lawyers later exonerated Jimenez based on the evidence, but the case was far from over. Writing on her personal blog, Nielsen said, "More than 14 years later, I still have my original draft, my notes and letters TJ (Jimenez) sent me when I interviewed him via mail." After reading this, lawyers now representing the Chicago police officers involved in the case realized that, if they had possession of her notes and other materials, they might be able to find evidence to support their claim that the original arrests and investigations were completely justified. Nielsen naturally refused to hand over her notes and recordings. Had this case occurred during the 1970s or 1980s, Nielsen's chances of successfully winning her claim of reporter's privilege would have been virtually nonexistent.

U.S. Federal Judge Marsha J. Pechman presided over Nielsen's trial hearing and ruled based on the 9^th Circuit (including Washington State) "that says there is a privilege for people who gather or receive information for publication." [12] To the shock and surprise of many legal analysts, Pechman quashed the subpoena, issuing a "protective order," one which required the prosecuting attorneys to refrain from further questioning of Nielsen. Nielsen did not have to release any of her reporting materials.

In April 2009, the Associated Press reported that "a federal judge upheld the right of a Pulitzer Prize-winning newspaper reporter to invoke the Fifth Amendment when he refused in court to reveal his sources in a 2004 story about a terrorism prosecutor." [13] Detroit Free Press journalist David Ashenfelter, 60, at the recommendation of his lawyer Richard Zuckerman, "asserted his Fifth Amendment right against self-incrimination when asked for his sources." The decision to turn to the Fifth Amendment came only after a failed attempt to "avoid a deposition by citing a reporter's privilege under the First Amendment" a year before. This case exemplifies the aforementioned legal fluidity of reporter's privilege. While the First Amendment is typically used to support reporter's privilege, as it encompasses the freedom of speech and freedom of the press, there are, in some cases, alternate means of claiming the privilege in an attempt to maintain source confidentiality.

It is the opinion of the writer that, given the aforementioned summary of the history of reporter's privilege, notable cases and recent examples, there is little that can be done to further develop the claim of reporter's privilege. Currently, a qualified protection for journalists is still at the discretion of the state and is still a limited privilege. From Branzburg v. Hayes, courts rely on the three-part test of Justice Potter Stewart, who recommended the limited First Amendment privilege. When considering a case of reporter's privilege, the court must show (1) "a probable cause to believe that a reporter has information "clearly relevant" to a specific violation of the law (2) evidence that the information sought cannot be obtained by alternate means less destructive of First Amendment values (3) "a compelling and overriding interest in the information." [14] This test has, so far, been narrowly tailored enough to handle even the most complex and controversial cases of journalist's claiming reporter's privilege. The test works because it is not overbroad. Because the issue of reporter's privilege is so open to opinion, including the definitions of "compelling" and "overriding interest," courts must, as Justice Powell states in his concurrence to Justice Stewart's dissent, examine the balance between the freedom of the press and "the obligation of all citizens to give relevant testimony with respect to criminal conduct" on a "case-by-case basis."

It is the opinion of the writer that in an effort to further advance the freedom of the press and its ability to provide even the most controversial of information to the public, including its role as the watchdog of the government, that state governments, excluding the 38 that have already passed statutory shield laws, should consider enacting legislation to protect journalists and their right to maintain source confidentiality. Reporter's privilege, albeit limited, should be a nation-wide privilege for all journalists in all times and in all places within the U.S. It should not, however, be legislated by the federal government, as this would only complicate the claim of reporter's privilege by giving it universal rules, stipulations and regulations across the board. By allowing individual state and local governments and their local courts to enact and legislate statutory and shield laws tailored specifically to the prominent cases within their communities, reporter's privilege remains an asset to journalists within their respective states. A federal reporter's privilege and shield law would restrict journalistic freedom and only damage, if not eradicate, the power of the First Amendment to allow for a free press.

As for the future of reporter's privilege and statutory shield laws, it is the opinion of the writer that additional states will soon experience cases in which they will be forced to consider enacting such legislation. Based on the aforementioned legal history of the issue and upon careful analysis of the aforementioned cases, particularly in a post-Branzburg world, it only seems logical that journalists will be claiming the privilege more frequently. As long as the First Amendment continues to be recognized by the Supreme Court, allowing for a free press, reporter's privilege, as it develops over the next several years, will likely become more heavily tolerated within trials and legal hearings. It has been said that reporter's privilege remains "the most important common-law defense in the post-Times v. Sullivan era." [15] As such, it must be allowed to continue to develop naturally, while remaining narrowly-tailored within each state's respective legislation, to meet the demands of a fast-paced, ever-changing era of journalism. Reporter-source confidentiality should be viewed by local and state governments as a valuable tool used by the press to provide fair, accurate and important information to the public, actions that have embodied the heart and the spirit of the press for decades, rather than a controversial and questionable issue that must be restricted at all costs. In the words of former and third President of the United States Thomas Jefferson (1801-1809), "Our liberty depends on the freedom of the press, and that cannot be limited without being lost." [16]

References:

Branzburg v. Hayes 408 U.S. 665 (1972)

Senear v. Daily Journal-American, 641 P.2d 1180 (Wash. 1982)

In re Grand Jury Subpoena, Miller, 397 F.3d 964 (D.C. Cir.), cert denied, 545 U.S. 1150 (2005).

Riley v. City of Chester, 612 F.2d 708 (3^rd Cir. 1979)

In re Farber, 394 A.2d 330 (N.J. 1978)

[1] Bates, Stephen. "Getting to the Source: The Curious Evolution of Reporter's Privilege." Slate Magazine. December 6, 2003. Retrieved 11/26/10 from http://www.slate.com/id/2093187/.

[2] Merriam-Webster's Dictionary of Law © 1996. Merriam-Webster, Incorporated. Published under license with Merriam-Webster, Incorporated. http://www.dictionary.findlaw.com.

[3] Middleton, Kent R. and Lee, William E. "The Law of Public Communication." 8^th ed. Pearson Publishers, 547.

[4] Branzburg v. Hayes, 408 U.S. 665 (1972)

[5] Middleton, Kent R. and Lee, William E. "The Law of Public Communication." 8^th ed. Pearson Publishers, 530.

[6] The Oyez Project, Branzburg v. Hayes, 408 U.S. 665 (1972). http://www.oyez.org/cases/1970-1979/1971_70_85.

[7]Riley v. City of Chester, 612 F.2d 708 (3^rd Cir. 1979). Google Scholar: http://www.scholar.google.com. Case summary and transcripts retrieved 10/10/2010.

[8]In re Grand Jury Subpoena, Miller, 397 F.3d 964 (D.C. Cir.), cert. denied, 545 U.S. 1150 (2005)

[9] Google Scholar: http://www.scholar.google.com. Case summary and transcripts retrieved 10/10/2010.

[10] Middleton, Kent R. and Lee, William E. "The Law of Public Communication" 8^th ed. Pearson Publishers, 535.

[11] Seattle (AP) (2010, March 28) Chicago police seek notes of Washington professor. USA Today. Retrieved on 10/10/2010 from http://www.usatoday.com/news/nation/2010-03-27-journalism-professor_N.htm.

[12] Carter, Mike. "Journalists can keep notes from murder case private, judge rules." The Seattle Times. August 24, 2010. Retrieved 10/17/2010. http://seattletimes.nwsource.com/html/localnews/2012704975_subpoena24m.html.

[13] White, Ed. "Judge upholds right of reporter not to ID sources." Associated Press. 21, April 2019. Retrieved from www.foxnews.com on 10/10/2010.

[14] Middleton, Kent R. and Lee, William E. "The Law of Public Communication," 8^th ed., 533.

[15] Middleton, Kent R. and Lee, William E. "The Public Law of Communication" 8^th ed., 164.

[16] "Establishing a Federal Republic-Thomas Jefferson (Library of Congress Exhibition). Library of Congress: www.loc.gov. Retrieved on 11/26/2010 from http://www.loc.gov/exhibits/jefferson/jefffed.html