Reporter's privilege

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Reporter's privilege in the United States (also journalist's privilege,newsman's privilege, or press privilege), is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources." [1] It may be described in the US as the qualified (limited) First Amendment or statutory right many jurisdictions have given to journalists in protecting their confidential sources from discovery. [2]

Contents

The First, Second, Third, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a qualified reporter's privilege exists. In the 2013 case of U.S. v. Sterling , the Fourth expressly denied a reporter's privilege exists under Branzburg . Furthermore, forty-nine states and the District of Columbia have enacted statutes called shield laws protecting journalists' anonymous sources. [3]

United States

Department of Justice guidelines (United States)

The United States Department of Justice created self-imposed guidelines intended to protect the news media by regulating the use of subpoenas against the press. These guidelines state that the government "should have made all reasonable attempts to obtain the information from alternative, non-media sources” before considering issuing a subpoena to a member of the news media. [4] Furthermore, the guidelines require that federal prosecutors negotiate with the press, explaining the specific needs of the case.

Before any subpoena may be issued, the attorney general must approve the issuance. The attorney general’s review for a subpoena to a member of the news media shall be based on the following criteria:

While these guidelines seem extremely protective of the press, they explicitly deny the creation of “any right or benefit, substantive or procedural, enforceable at law.” [5] Nor does the policy have any substantive punishment for the federal government violations. If the federal prosecutors fail to obtain approval from the attorney general, the extent of the authorized punishment is “an administrative reprimand or other appropriate disciplinary action.” [6] In fact, some courts have found that the guidelines “create no enforceable right.” [7] Therefore, in circuits taking this approach, the news media have no right to appeal for enforcement of these policies before being compelled to testify.

Judith Miller's attempted use of reporter's privilege

The issue of a reporter's privilege came to the forefront of media attention in the 2005 case In re Miller, involving reporters Judith Miller and Matthew Cooper. Miller and Cooper were both served with grand jury subpoenas for testimony and information, including notes and documents pertaining to conversations with specific and all other official sources relating the Plame affair. Both refused to submit to the subpoenas, claiming a reporter’s privilege. [8] The federal district court held both Miller and Cooper in civil contempt of court, and the United States Court of Appeals for the District of Columbia Circuit upheld the orders of contempt.

Miller and Cooper, in their appeal to the appellate court pleaded several defenses including a First Amendment reporter’s privilege and a common law reporter’s privilege. [9] The appellate court rejected both the First Amendment and common law claims for privilege. The court held Miller and Cooper in civil contempt of court and sentenced both to eighteen months of jail time. The sentence was stayed pending an appeal to the U.S. Supreme Court.

However, the U.S. Supreme Court refused to hear the case. Judith Miller began serving the remaining four months of the original eighteen-month sentence on July 6, 2005. Matthew Cooper’s confidential source released him from their confidentiality agreement, so he chose to comply with the subpoena and has agreed to testify before the grand jury. [10]

Congressional proposals

In 2004, two significant bills were introduced in the United States House of Representatives and in the United States Senate to create a federal shield law. The first bill was introduced in identical form in both the Senate and the House by Senator Richard Lugar (R-IN) and Representative Mike Pence (R-IN). [11] Senator Christopher Dodd (D-CT) introduced separate legislation that created a seemingly broader protection than the Pence/Lugar bill. [12]

In 2006, Rodney A. Smolla testified before the Senate Judiciary Committee on the topic of reporter's privilege.

On December 2, 2010, in a reaction to the United States diplomatic cables leak, John Ensign (R-NV) introduced S.4004 to amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities and for other purposes. [13] While titled the SHIELD Act, the proposed legislation has little in common with shield laws in the United States.

See also

Related Research Articles

A subpoena or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoenas:

  1. subpoena ad testificandum orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person.
  2. subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to requesting party or directly to court.

Executive privilege is the right of the president of the United States and other members of the executive branch to maintain confidential communications under certain circumstances within the executive branch and to resist some subpoenas and other oversight by the legislative and judicial branches of government in pursuit of particular information or personnel relating to those confidential communications. The right comes into effect when revealing the information would impair governmental functions. Neither executive privilege nor the oversight power of Congress is explicitly mentioned in the United States Constitution. However, the Supreme Court of the United States has ruled that executive privilege and congressional oversight each are a consequence of the doctrine of the separation of powers, derived from the supremacy of each branch in its area of constitutional activity.

Attorney–client privilege or lawyer–client privilege is the common law doctrine of legal professional privilege in the United States. Attorney–client privilege is "[a] client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically, the bribery of a U.S. senator or U.S. representative was considered contempt of Congress. In modern times, contempt of Congress has generally applied to the refusal to comply with a subpoena issued by a congressional committee or subcommittee—usually seeking to compel either testimony or the production of requested documents.

A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In some jurisdictions, it can also be issued by legislative bodies such as county boards of supervisors.

A shield law is legislation designed to protect reporters' privilege. This privilege involves the right of news reporters to refuse to testify as to the information and/or sources of information obtained during the news gathering and dissemination process. Currently, the U.S. federal government has not enacted any national shield laws, but most of the 50 states do have shield laws or other protections for reporters in place.

Branzburg v. Hayes, 408 U.S. 665 (1972), was a landmark decision of the US Supreme Court invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972, and decided June 29 of the same year. The reporters lost their case by a vote of 5–4. This case is cited for the rule that in federal courts, a reporter may not generally avoid testifying in a criminal grand jury, and is one of a limited number of cases in which the U.S. Supreme Court has considered the use of reporters' privilege.

In journalism, a source is a person, publication, or knowledge of other record or document that gives timely information. Outside journalism, sources are sometimes known as "news sources". Examples of sources include but are not limited to official records, publications or broadcasts, officials in government or business, organizations or corporations, witnesses of crime, accidents or other events, and people involved with or affected by a news event or issue.

<i>Apple v. Does</i> California Courts of Appeal case

Apple v. Does was a high-profile legal proceeding in United States of America notable for bringing into question the breadth of the shield law protecting journalists from being forced to reveal their sources, and whether that law applied to online news journalists writing about corporate trade secrets. The case was also notable for the large collection of amici curiae who joined in the matter.

The CIA leak grand jury investigation was a federal inquiry "into the alleged unauthorized disclosure of a Central Intelligence Agency (CIA) employee's identity", a possible violation of criminal statutes, including the Intelligence Identities Protection Act of 1982, and Title 18, United States Code, Section 793.

<span class="mw-page-title-main">James Goodale</span> American lawyer

James C. Goodale was the vice president and general counsel for The New York Times and, later, the Times' vice chairman.

Lance Williams and Mark Fainaru-Wada co-authored the book Game of Shadows while they were reporters for the San Francisco Chronicle. For their investigative work in the field of steroids, Williams and Fainaru-Wada were given the 2004 George Polk Award.

The Plame affair was a dispute stemming from allegations that one or more White House officials revealed Central Intelligence Agency (CIA) agent Valerie Plame Wilson's undercover status. An investigation, led by special counsel Patrick Fitzgerald, was started, concerning the possibility that one or more crimes may have been committed. The initial focus was on Scooter Libby; however, he was not the primary source of the leak.

Source protection, sometimes also referred to as source confidentiality or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interests with journalists.

The Free Flow of Information Act is a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process.

<i>Neri v. Senate</i>

Neri v. Senate is a controversial 9–6 ruling of the Supreme Court of the Philippines which affirmed the invocation of executive privilege by petitioner Romulo Neri, member of the Cabinet of President Gloria Macapagal Arroyo, regarding questions asked during a Congressional inquiry on the controversial multimillion-dollar National Broadband Network (NBN) Project. The Supreme Court finally affirmed this ruling on September 4 and 23, 2008 by denying the defendant Senate Committees' first and second Motions for Reconsideration.

Myron A. Farber is an American newspaper reporter for The New York Times, whose investigations into the deaths of several patients at an Oradell, New Jersey, hospital led to the murder trial of Mario Jascalevich, a physician at the hospital who was alleged to have used a powerful muscle relaxant in what became known as the "Dr. X" case. After refusing to turn over notes from his investigation in response to a subpoena from the defense attorney in the case, Farber was jailed for contempt and the newspaper fined, ending up spending 40 days in jail with fines of $285,000 assessed. Appealed to the Supreme Court of the United States, the case set a precedent for the limitations of shield laws in the United States.

<span class="mw-page-title-main">California Shield Law</span>

The California Shield Law provides statutory and constitutional protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering. The shield law is currently codified in Article I, section 2(b) of the California Constitution and section 1070 of the Evidence Code. Section 1986.1 of the California Code of Civil Procedure (CCP) supplements these principal shield law provisions by providing additional safeguards to a reporter whose records are being subpoenaed.

<i>Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.</i> Case in the New Hampshire Supreme Court

The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. is a New Hampshire Supreme Court case in which Mortgage Specialists, a mortgage lender, sought to obtain the identity of an anonymous source who provided Implode-Explode Heavy Industries (Implode), a website monitoring risky lenders, with a confidential document detailing Mortgage Specialists' loan practices. Mortgage Specialists also sought to prohibit the republication of the document and learn the identity of an anonymous individual who allegedly defamed Mortgage Specialists on Implode's website. Mortgage Specialists disputed Implode's status as a news organization, claiming that it should not be afforded the rights of a news organization under the First Amendment to the U.S. Constitution and Part I, Article 22 of the New Hampshire Constitution.

R v McManus and Harvey is a landmark Australian court case for freedom of the press, whistleblowers and reporters privilege that resulted in journalists gaining greater safeguards to protect their sources.

References

  1. ↑ Black's Law Dictionary, West Publishing-Thomson Reuters (9th ed. 2009).
  2. ↑ "LexMedia". lexmedia.com.au. Archived from the original on 2015-09-07.
  3. ↑ "Is It Finally Time for a Federal Shield Law?". 26 July 2018.
  4. ↑ 28 C.F.R. § 50.10(c)(4)(iii).
  5. ↑ 28 C.F.R. § 50.10(j).
  6. ↑ 28 C.F.R. § 50.10(i).
  7. ↑ In re: Miller, 397 F.3d 964, 975 (D.C. Cir. 2005) (The appellant journalists claimed that the contempt charges should be reversed because the justice department had not complied with the guidelines issuing subpoenas to news media. Because the circuit court found that the guidelines did not create an enforceable right, it found no reason to determine the issue of compliance).
  8. ↑ In re Miller, 397 F.3d 964, 966-68 (D.C. Cir. 2005).
  9. ↑ Id. at 967. Miller and Cooper also put forward a due process defense and a defense based on guidelines for the Justice Department that are codified at 28 C.F.R. § 50.10 (2005).
  10. ↑ Adam Liptak and Maria Newman, New York Times Reporter Jailed for Keeping Source Secret, The New York Times, July 6, 2005.
  11. ↑ H.R. 581 (Free Flow of Information Act of 2005). This bill was referred to the House Committee on the Judiciary. See also S. 340 (Free Flow of Information Act of 2005) (referred to the Senate Committee on the Judiciary).
  12. ↑ S. 369. Sen. Dodd introduced the same bill in the 2004 congressional session. It was not acted on before the Senate adjourned. See S. 3020, 108th Congress, 2nd Sess. (2004); see alsoSecond shield bill introduced in U.S. Senate, http://www.rcfp.org/news/2005/0217-con-second.html.
  13. ↑ S. 4004
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