CONFERENCE SPONSORS

The Media Law Resource Center (MLRC) Institute has created a presentation to educate students and the general public about the First Amendment, shield laws, and the reporter’s privilege against being forced to disclose the identity of their confidential sources.

The presentation consists of a set of materials including a PowerPoint presentation on the reporter’s privilege and how it has evolved, a general history of the privilege, examples of news stories that could not have been told without the use of confidential sources, and a review
of the legal history of the privilege, including pending and enacted shield laws

Through our network of members, we send one journalist and one lawyer to give the presentation, which lasts about 15-20 minutes, with time for questions and answers.

We have facilitated presentations around the country at the Georgia Bar Association, University of Cincinnati Law School, the Utah Supreme Court Advisory Committee, Columbia University School of Journalism, and the National Press Club, among others, as well as high schools, Rotary
clubs, bookstores, libraries.

THE REPORTER’S PRIVILEGE: A HISTORICAL OVERVIEW

1722: James Franklin, brother of Benjamin Franklin, was imprisoned for one month after refusing to disclose to a committee of the Massachusetts legislature the identity of the author of a story published in his newspaper. (When James was prevented from publishing his newspaper, the New England Courant, because the Massachusetts legislators forbid him to print anything without first getting government approval, James replaced himself as publisher with his 17-year-old brother, Benjamin. It was in this role that Ben Franklin first published the essay “On Freedom of Speech,” part of a series of essays known as “Cato’s Letters,” which was incorporated into many state constitutional provisions on press freedom, as well as James Madison’s initial draft of the First Amendment.)

1735: First known example of an American reporter protecting a confidential source: Colonial New York publisher John Peter Zenger, publisher of the New York Weekly Journal, the opposition paper to Crown Governor William Cosby, refused to identify his source when prosecuted by colonial authorities for criticizing the royal government. Philadelphia attorney Andrew Hamilton defended Zenger pro bono, telling jurors that Zenger’s steadfast protection of the governor’s critics would lay “a noble foundation for securing … a right to liberty of both exposing and opposing arbitrary powers (in these parts of the world at least) by speaking and writing truth.” Zenger was acquitted.

1779: A Pennsylvania newspaper column, published under the name “Leonidas,” blamed the Continental Congress for inflation and accused delegates to the Congress of embezzlement, leading delegates to call for proceedings to discover the identity of the columnist. Several other delegates made impassioned arguments that such proceedings would restrain liberty of the press, and the attempts to uncover the anonymous journalist’s identity were abandoned.

1812: An editor for The Alexandria Herald refused to identify the sources of a news story and received a contempt citation from Congress.

1848: First reported case in American courts in which a journalist sought to shield the identity of his source occurred when Senate correspondent for the New York Herald, John Nugent, was jailed for contempt of the Senate when he refused to disclose his source for a copy of a secret draft of a proposed treaty to
end the Mexican-American War. The draft treaty had been provided to Nugent in violation of a Senate rule that held treaty discussions in secrecy until senators voted to lift the veil. (Leaks were apparently rampant at the time. According to Nugent, “those Senators who most strenuously advocate the system of closed doors, are always the least economical of the Senate secrets.”) Nugent was jailed for contempt when the Senate called on Nugent to disclose the source of the leak and he would say only that the information had not come from a senator or Senate Officer. A federal judge ruled that the courts had no power to intervene. Ex Parte Nugent, 18 F. Cas. 471 (C.C.D.C. 1848) (No. 10,375). Nugent continued to file articles while imprisoned and the Herald doubled his salary. Eventually the Senate released Nugent on the face-saving grounds of protecting his health.

1857: New York Times correspondent jailed when he refused to reveal to a select committee of the House the identities of the House members who had told him that some of their colleagues were taking bribes.

1896: Maryland enacts the first state “Shield Law” after Baltimore Sun reporter John T. Morris was jailed for two days when he refused to reveal to a grand jury his sources for stories about the bribery of elected officials. The Maryland law was intended “to protect reporters and other newspaper men from being compelled to disclose the source of any news or other information procured for publication in any legal or legislative proceeding.” It would be 37 years before another state would enact a shield law.

1920s-1930s: Between 1933 and 1941, New Jersey and nine other states adopted shield laws in response to a series of high-publicity jailings of New Jersey reporters who refused to divulge their sources.

1936: Issue of evidentiary privilege, framed as such, raised for first time at common law in People ex rel. Mooney v. The Sheriff of New York County, 269 N.Y. 291, 199 N.E. 415 (1936), when the New York Court of Appeals upheld the contempt citation of a newspaper reporter in a grand jury setting. The court held that whether to enact such a privilege must be left to the legislature, declining to depart from the general rule then in force in many of the States and in England.

1958: The first claim of a journalist’s privilege framed as a First Amendment issue was brought before a federal court in the case of Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958). New York Herald Tribune’s entertainment reporter, Marie Torre, was sentenced to 10 days in jail when she refused to reveal the name of a source quoted in an article about CBS executives’ difficulty trying to tape a Judy Garland special. Citing her promise of confidentiality and the First Amendment’s guarantee of a free press, Torre’s lawyers argued that compelled disclosure would “impose an important practical restraint on the flow of news from news sources to the news media and would thus diminish pro tanto the flow of news to the public.” Torre said that, if she identified her source, “nobody in the business will talk to me again.” In a decision written by Judge Potter Stewart (visiting from the Sixth Circuit), shortly before his elevation to the Supreme Court, where he would write the leading dissent endorsing a privilege in Branzburg v. Hayes, the Second Circuit acknowledged that journalists have a First Amendment interest in protecting their sources, but held that these rights are not absolute. Finding that the questions asked of Torre “went to the heart of plaintiff’s claim,” the Court held that her First Amendment interests were trumped in this case by “the paramount public interest in the fair administration of justice.” Torre went to jail for 10 days, rather than comply with the Court’s order.

Late 1960s/Early 1970s: The mere “sporadic annoyance” of subpoenas being served on journalists became an “epidemic” during an era of high tension between the government and the news media. During the first two years of the Nixon administration, CBS and NBC alone were served more than 120 subpoenas by the government. As the Nixon administration perfected the art of using sophisticated public relations strategy to control the flow of information, federal grand juries and Congress served a flood of subpoenas, some say as part of a comprehensive administration anti-press strategy, targeted in these cases at silencing the growing number of black reporters in the press.

During this period, three states adopted shield laws and seven more would follow in the wake of Branzburg. But, as tensions increased, even before these new shield laws were enacted, the U.S. government itself decided to impose limits on federal prosecutors, issuing what’s come to be known as the Department of Justice Guidelines. Prior to their enactment, Attorney General John Mitchell acknowledged that this “bitter dispute ha[d] already produced seeds of suspicion and bad faith,” and acknowledged that the public interest would, in at least some situations, be “better served by negotiations.” The DOJ Guidelines, which were formally promulgated in 1973, provide that no subpoena may be issued to any member of the news media without the express authorization of the Attorney General. They also create a balancing test whereby federal prosecutors are called upon to: (1) strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice; and (2) make “[a]ll reasonable attempts [to] obtain information from alternative sources before considering issuing a subpoena to a member of the media.” 28 C.F.R. § 50.10(a) & (b). The DOJ Guidelines also require federal authorities to accommodate these varying interests by negotiating with the media before issuing a subpoena. 28 C.F.R. § 50.10(c). (In 1980, the DOJ Guidelines were amended to address the subpoenaing of telephone toll records. 28 C.F.R. § 50.10(m).)

1970: When the U.S. Court of Appeals for the 9th Circuit ruled that New York Times reporter Earl Caldwell could protect his confidential sources for articles he’d written about the Black Panthers, it became the first federal circuit court to extend explicit constitutional protection to the press (but was subsequently reversed by Branzburg v. Hayes, 408 U.S. 665 (1972)). The 9th Circuit recognized reporters’ need to maintain confidentiality in order to report on unknown and unpopular movements. Caldwell v. U.S., 434 F.2d 1081 (9th Cir. 1970).

1972: The only time the Supreme Court squarely faced the reporter’s privilege issue was in Branzburg v. Hayes, 408 U.S. 665 (1972), which was issued twelve days before the break-in at the Watergate Hotel. The case arose out of four grand jury investigations:
 Two grand juries were convened to investigate reports in the Louisville, Kentucky Courier-Journal on the local drug trade. Branzburg v. Pound, 461 S.W.2d 345 (Ky.Ct. App. 1970); Branzburg v. Meigs, 503 S.W.2d 748 (Ky.Ct.App. 1971).
 The third grand jury investigation involved a Massachusetts grand jury’s investigation of a television journalist’s coverage of the internal planning of protests by the Black Panther movement. In re Pappas, 358 Mass. 604, 266 N.E.2d 297 (1971).
 The fourth investigated reporting on the Black Panther movement by New York Times reporter Earl Caldwell. Caldwell v. U.S., 434 F.2d 1081 (9th Cir. 1970).
The Court held that the First Amendment does not protect a journalist who has actually witnessed criminal activity from revealing his/her information to a grand jury. However, five justices recognized the existence of a qualified privilege for reporters. As described by Justice Potter Stewart in his dissenting opinion, the First Amendment rights of reporters should be weighed against the subpoenaing party’s need for disclosure, with the court considering in the balance whether the information is relevant and material to the party’s case; whether there is a compelling and overriding interest in obtaining the information; and whether the information could be obtained from another non-media source.

Paul Branzburg was sentenced to six months in jail, but had moved to Michigan to work for The Detroit Free Press and, despite the Kentucky governor personally lobbying Michigan Governor William Milliken to extradite Branzburg back to Kentucky, Milliken refused and Branzburg never returned to Kentucky or served a day in jail.

1970s-1990s: In the year following Branzburg, dozens of reporters were cited for contempt and many were jailed for refusing to comply with subpoenas. News organizations sought protection and the lower federal courts and state courts and legislatures responded. At the time of the Branzburg ruling, only 17 states had some sort of statutory protection protecting confidential sources and only a handful of jurisdictions had recognized the right under the common law or constitutional law; now, the courts and/or legislatures of every state but Wyoming have recognized a reporter’s privilege, including 32 states and the District of Columbia which have state shield law statutes.

Although, following the decision, there was some debate as to whether the Branzburg court had rejected any First Amendment privilege for journalists or had recognized the existence of such protection but found it to have been overcome in that specific set of circumstances, the lower federal and state courts gradually developed a jurisprudence reading Branzburg to support the existence of a constitutional privilege in certain circumstances. Most of these courts focused on Justice Powell’s opinion, concluding that he and the dissenters endorsed a balancing of interests, and roughly the same balancing test began to emerge, focusing on three factors:
(1) the relevance of the information being sought;
(2) whether the information is necessary or critical to a party’s claim or defense; and
(3) whether the party seeking the information has exhausted alternative sources.
Although there were nuanced differences among these courts, for example, on the precise standard to be applied and the application of the privilege in various contexts, there was a broad consensus regarding the core meaning of Branzburg—i.e., that those who engage in reporting have some constitutionally-based protections against compelled disclosure, the application of which requires a careful balancing in each case.

Late 1990s-present: Tears in the patchwork of protection on which journalists had come to rely are becoming increasingly apparent. There has been a notable rise in the number of subpoenas served on journalists and application of new techniques in “leak” investigations—such as investigators asking government employees to sign waivers releasing reporters from confidentiality agreements. Among the high-profile cases:

 Rhode Island investigative reporter Jim Taricani of the NBC affiliate in Providence was released on April 9, 2005 after serving four months of a six-month house arrest sentence for refusing to reveal who gave him an FBI videotape showing a top aide of former Mayor Vincent “Buddy” Cianci, Jr. accepting a bribe. (Cianci was later convicted on corruption charges and is serving a five-year, three-month sentence.) The videotape was leaked to Taricani in violation of a protective order issued by a federal judge in connection with the corruption investigation. Taricani’s sentence was issued even though the special prosecutor appointed to investigate the source of the leak determined the identity of the source. Taricani’s source later pleaded guilty to contempt and perjury, and, in September 2005, was sentenced to 18 months in prison on the perjury charge.

 On July 6, 2005, a federal judge ordered that Judith Miller (then of the New York Times) be jailed for refusing to disclose her source before the grand jury investigating the leak of the identity of a covert C.I.A. operative, Valerie Plame. That same judge in October 2004 had sentenced Miller and Time reporter Matt Cooper to serve up to 18 months in jail (the term of the grand jury) for civil contempt of court for refusing to disclose their confidential sources, but those sentences were stayed pending appeal. Cooper agreed to testify after his source released him from his promise of confidentiality, thereby avoiding jail. Miller was released on September 29, 2005, after serving 85 days at the Alexandria Detention Center in Virginia. She agreed to testify before the grand jury after receiving a personal waiver from her source.
Background: In February 2005, Miller and Cooper appealed the civil contempt order imposed by the district court judge to a three-judge panel of the D.C. Circuit Court of Appeals. The panel denied the request and held that no privilege protects journalists from being compelled to disclose their sources before a grand jury. The court unanimously agreed that the First Amendment does not provide protection. The three judges split on the question of whether a common law privilege may exist, although even those who found the existence of a common law privilege agreed that it would have been overcome in this case—but, when issued, the portion of the opinion supporting this decision was only available to the government as it was redacted from the public version. Neither the journalists (and their lawyers) nor the public were allowed to see the reasons why the government claimed it needed their testimony.
The case was then appealed to the full D.C. Circuit Court of Appeals, which declined to hear the case in April 2005. In late June 2005, the Supreme Court refused to take up the case.
The Miller-Cooper case involves a leak investigation following the publication by columnist Robert Novak of the identity of undercover CIA officer Plame, whose husband, former Ambassador Joseph C. Wilson IV, had publicly criticized the Bush administration’s claim that Iraq had been attempting to buy uranium from Niger to make nuclear weapons. In publishing Plame’s identity, Novak cited two unnamed “senior administration officials” as his sources. Patrick Fitzgerald, the special prosecutor investigating the leak, subpoenaed or sought testimony from at least five reporters, one of whom—Miller—never even wrote a story about Plame. After receiving waivers from their sources, Glenn Kessler and Walter Pincus of the Washington Post, and Tim Russert of NBC, testified in connection with the investigation. During the grand jury investigation, it was unclear whether Robert Novak was subpoenaed and/or whether he has testified regarding his sources for the initial story.
In late October 2005, I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, was indicted on five charges related to the leak investigation.
A number of journalists testified at Libby’s trial: Miller, Cooper, Russert, Novak, Bob Woodward of the Washington Post, David Sanger of the New York Times, and Evan Thomas of Newsweek. Libby had filed subpoenas requesting notes and other materials from several news organizations. In May 2006, after reviewing the subpoenaed materials, D.C. District Court Judge Reggie B. Walton quashed most of the subpoenas against the news organizations (not on First Amendment reporter’s privilege grounds), but ordered Time magazine to turn over drafts of first-person articles that Cooper had written about his conversations with Libby (on grounds that there were inconsistencies between the drafts). Judge Walton also found that certain documents held by the New York Times could be admissible as “impeachment evidence” if Miller’s testimony during the trial differs from the content of the documents.
On March 6, 2007, Libby was found guilty of one count of obstruction of justice, two counts of perjury and one count of lying to investigators. (He was found not guilty on a second count of lying to investigators.) Although Libby faced up to 30 years in prison, he received a sentence of 30 months and a $250,000 fine. On July 2, after a three-judge panel of the D.C. Circuit Court of Appeals declined to allow Libby to stay out of jail pending his appeal, President Bush commuted Libby’s prison sentence, stating that 2 ½ years in prison was “excessive.” Libby will still have to pay the fine and will remain on probation.
Plame and Wilson filed a civil lawsuit against Libby, Vice President Cheney, former senior White House advisor Karl Rove, and Richard Armitage, the former deputy secretary of state who was the source of the initial leak of Plame’s identity to journalists, for violating her privacy and her Constitutional rights. On July 19, 2007, U.S. District Judge John D. Bates dismissed Plame’s lawsuit against all of the defendants. “The alleged means by which defendants chose to rebut Mr. Wilson’s comments and attack his credibility may have been highly unsavory,” Judge Bates wrote, “But there can be no serious dispute that the act of rebutting public criticism, such as that levied by Mr. Wilson against the Bush administration’s handling of prewar foreign intelligence, by speaking with members of the press is within the scope of defendants’ duties as high-level Executive Branch officials.”

 On August 1, 2006, the 2nd Circuit Court of Appeals reversed a lower court decision and ruled that federal prosecutors may see the phone records of two New York Times reporters in connection with a grand jury leak investigation.

Background: Judith Miller and Philip Shenon each wrote stories in 2001 that revealed government plans to freeze the assets and raid the offices of two Islamic charities suspected of giving money to al Qaeda. Prior to publication, both reporters contacted the charities for comment on the government’s plans. Patrick Fitzgerald, acting as U.S. Attorney for the Northern District of Illinois, subsequently convened a grand jury to investigate whether someone in the government had told them of the planned raids. Fitzgerald threatened to subpoena the phone company for the paper’s records after Miller and Shenon refused to reveal their sources, thereby prompting the paper to bring suit to prevent prosecutors from obtaining the reporters’ sources from the phone records.
In February 2005, Judge Robert Sweet of the Southern District of New York ruled in favor of the paper and held that compelled disclosure of the telephone records was barred by a qualified reporter=s privilege found under both the First Amendment and the common law, and that the government had failed to overcome the privilege. In a 2-1 decision, the appellate court disagreed, ruling that there was no need to decide the existence of a common law privilege because the government could overcome any such privilege, and that under Branzburg, there was no First Amendment-based privilege. Circuit Judge Robert Sack dissented, finding that the government had not shown that the information was unavailable from other sources.
On November 24, 2006, the New York Times submitted a motion to Justice Ruth Bader Ginsburg (Circuit Justice for the Second Circuit), in which it sought a stay of the Second Circuit’s decision pending the filing and disposition of a petition for writ of certiorari. Justice Ginsburg referred the motion to the entire Court, which rejected it on November 27.

 On March 1, 2007, U.S. District Court Judge Jeffrey White vacated contempt of court findings against two reporters from the San Francisco Chronicle ordered to reveal who had given them confidential grand jury testimony.

Background: The reporters, Mark Fainaru-Wada and Lance Williams, had written articles reporting on and quoting testimony from the grand jury investigating the Bay Area Laboratory Co-Operative (BALCO) and the use of performance-enhancing drugs by professional athletes. In February 2007, an attorney for one of the BALCO defendants admitted that he gave one of the reporters access to the grand jury transcripts and allowed him to take verbatim notes of the transcripts. The reporters did not confirm nor deny that the defense attorney was their confidential source.
On August 15, 2006, Judge White ordered the reporters to disclose their sources. The court rejected arguments for recognition of a privilege under the First Amendment and under federal common law, and ruled that the interests of the grand jury outweighed the interests of the reporters and the press. A month later, when the reporters continued to refuse to reveal their sources, Judge White ruled that the reporters were in civil contempt. He sentenced them to jail (for up to 18 months) and imposed a $1,000-a-day fine on the San Francisco Chronicle, but suspended those penalties pending an appeal to the U.S. Court of Appeals for the Ninth Circuit.

 On August 1, 2006, video blogger Josh Wolf was jailed for civil contempt for refusing to hand over outtakes to (or testify before) a federal grand jury investigating an anti-G8 protest that took place in July 2005 in San Francisco. He was released in April 2007, having spent 226 days in prison.

Background: Federal authorities were investigating the assault of a San Francisco police officer and the alleged arson of a local police car at the protest (on grounds that the department used federal funds for the police car).

Wolf was released on bail after a month, but his bail was revoked after the 9th Circuit Court of Appeals affirmed the district court’s contempt order. The appellate court held that under Branzburg, “[r]eporters have no First Amendment right to refuse to answer ‘relevant and material questions asked during a good-faith grand jury investigation.’” The court found that the grand jury investigation was not being conducted in bad faith, and that Wolf’s outtakes were relevant to the investigation. The court also refused to recognize a common law privilege. Wolf returned to federal prison in mid-September.

In October 2006, Wolf filed a petition for rehearing en banc, which was denied by the Ninth Circuit a month later. A motion made before the district court in January 2007 for Wolf’s release was also denied.

 Six reporters were subpoenaed in connection with the lawsuit by Wen Ho Lee, the nuclear scientist who had been named by the press as being suspected of passing secrets to the Chinese.
In August 2004, U.S. District Judge Thomas Penfield Jackson held five of these reporters in contempt, imposing a $500 a day fine (delayed pending appeals), after the reporters answered questions posed by Lee’s attorneys but refused to name their sources. The reporters were: AP reporter H. Josef Hebert; New York Times reporters James Risen and Jeff Gerth; Los Angeles Times reporter Robert Drogin; and Pierre Thomas, who was at CNN when the relevant stories were reported but subsequently joined ABC. In June 2005, the D.C. Circuit Court of Appeals upheld contempt orders against four of the reporters (the citation against Gerth was dropped because he testified that he had no confidential sources for his reporting on Lee and that he did not know the identity of sources who provided information about Lee for articles he co-authored with Risen). The case was appealed to the Supreme Court after the full D.C. Circuit Court of Appeals declined to hear the case in November 2005.
On November 16, 2005, Judge Rosemary M. Collyer of the U.S. District Court in Washington, D.C. found Walter Pincus of the Washington Post in civil contempt and fined him $500 for each day he remains in contempt for refusing to divulge his source for articles he had written on Lee.
In June 2006, prior to hearing whether the Supreme Court would hear the case, the government and five news organizations (AP, New York Times, Los Angeles Times, Washington Post and ABC) settled the case with Lee for $1.6 million, with the news organizations contributing $750,000 in the settlement. Three days later, the Supreme Court announced it would not hear the case.
 On August 13, 2007, U.S. District Court Judge Reginald Walton ordered five journalists to disclose their sources in connection with a lawsuit filed against the government by Steven Hatfill, charging violations under the Privacy Act over government leaks regarding Hatfill having been named a “person of interest” in the investigation into the 2001 anthrax attacks. The journalists are Michael Isikoff and Daniel Klaidman of Newsweek, Allan Lengel of The Washington Post, Toni Locy, formerly of USA Today, and James Stewart of CBS News. Judge Walton quashed subpoenas to the news organizations themselves.
Judge Walton called the case “strikingly similar” to Wen Ho Lee’s, and found that Hatfill’s need for the information outweighed the reporter’s First Amendment rights. (Information on the case may need to be updated.)
Background: In 2004, Hatfill had issued subpoenas to a number of news organizations and journalists after the Department of Justice claimed that submitting to Hatfill’s discovery requests would hamper their ongoing investigation and Judge Walton ordered 100 federal agents to waive any confidentiality agreements with the media. Hatfill subsequently withdrew the subpoenas after the government agreed to make its employees available to Hatfill for deposition. The following had received subpoenas: Baltimore Sun, CNN, NPR, UPI, ABC, CBS, NBC, the Associated Press, the Los Angeles Times, the Washington Post, Newsweek, Gannett Co. and reporter Scott Shane (formerly with the Baltimore Sun).
 Hatfill also filed defamation suits against Vanity Fair, Reader’s Digest, the New York Times and Times columnist Nicholas Kristof. District Court Judge Claude Hilton dismissed the case against the Times and Kristof in November 2004, but in July 2005, the Fourth Circuit Court of Appeals reinstated Hatfill’s lawsuit against the paper. The New York Times appealed, but the Supreme Court declined to hear the case.
During a July 2006 deposition in preparation for trial, Hatfill asked Kristof about his sources for the columns at issue in the defamation case; Kristof refused to identify his sources. On October 20, 2006, a federal magistrate granted Hatfill’s motion to compel. Following Kristof’s refusal to disclose his sources, Hatfill filed a motion to sanction the paper pursuant to Federal Rule of Civil Procedure 37. On November 20, the magistrate judge sanctioned the paper for not complying with the order to disclose sources and ruled that the New York Times was precluded from relying on information from Kristof’s confidential sources in defending the action. The judge also ordered the paper to reimburse Hatfill for reasonable attorneys’ fees incurred by him in filing and arguing the motion for sanctions.
In January 2007, Judge Hilton dismissed Hatfill’s case against the New York Times, ruling that Hatfill was a “public figure,” and that he had not stated a claim sufficient to sustain a defamation action.
In February 2007, Hatfill settled his defamation against Vanity Fair and Reader’s Digest.

Coinciding with this concentration of court cases seeking confidential sources or notes, some federal courts have begun questioning what had come to be a nationally accepted legal norm with respect to the reporter’s privilege. For example:

1998: In U.S. v. Smith, 135 F.3d 963 (5th Cir. 1998), the court interpreted Branzburg as holding that the First Amendment protects the media from subpoenas only when they are issued to harass the press.

2003: In McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), Judge Richard Posner, who acted without the benefit of any briefing or oral argument on the subject from the reporters, challenged the existing consensus among the sister circuits in a case in which the appeal had been dismissed as moot. Noting that “[a] large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege,” the Court wrote that, “rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances.”

Federal Shield Law Efforts:
Against this backdrop, emphasizing the need to establish consistency and uniformity in the protection of newsgathering, a bipartisan group of lawmakers have introduced bills in the House of Representatives and Senate in an effort to enact a federal shield law. In July 2005, Representatives Mike Pence (R-IN) and Rick Boucher (D-VA) introduced the “Free Flow of Information Act of 2005” in the House (H.R. 3323), and Senator Richard Lugar (R-IN) introduced an identical bill in the Senate (S. 1419). The bill provides near absolute protection for confidential sources (disclosure may be compelled if necessary to Aprevent imminent and actual harm to national security@).

At a July 20, 2005 hearing of the Senate Judiciary Committee to discuss the bill, Congressman Pence emphasized that the goal is to protect citizens’ right to know what government is doing. “Without the assurance of confidentiality, many whistle-blowers will simply refuse to come forward, and reporters will be unable to provide the American public with information they need to make decisions as an informed electorate.”

In May 2006, Senator Lugar introduced the “Free Flow of Information Act of 2006” in the Senate (S. 2831), which was co-sponsored by Senators Chris Dodd (D-CT), Lindsay Graham (R-SC), Charles Schumer (D-NY), and Arlen Specter (R-PA). The 2006 bill differs from the 2005 bill in that it provides a qualified privilege against disclosure of confidential sources and excludes from coverage unpublished, non-confidential information, disclosure of which would continue to be subject to existing law.

In May 2007, the “Free Flow of Information Act of 2007” was introduced in the House (H. R. 2102) and in the Senate (S. 1267), which would provide a qualified privilege for confidential sources and unpublished information. The House version, introduced by Rep. Pence and Rep. Boucher (among others), was favorably voted out of committee during a mark-up by the House Judiciary Committee in August. The Senate bill was introduced by Sen. Lugar and Sen. Dodd (among others).

In September 2007, the “Free Flow of Information Act of 2007” (S. 2035) was introduced in the Senate by Sen. Specter, and co-sponsored by Sen. Schumer and Sen. Lugar. The bill would provide a qualified privilege for confidential sources and information received in confidence. (Legislative information may need to be updated.)

LEGAL SOURCES FOR PROTECTION OF JOURNALISTS’ SOURCES

When Branzburg v. Hayes was decided in 1972, only 17 states provided some sort of statutory protection to a “newsman’s” confidential sources, and only a few jurisdictions appeared to have recognized the right under common law (the law created by case law precedent) or state or federal constitutional law.

During the three decades since Branzburg, fifteen more states as well as the District of Columbia have enacted statutes or rules recognizing the privilege, bringing the total number of states with shield law statutes to 33 plus the District of Columbia. The majority of jurisdictions have acknowledged that, without some shield protecting journalists from public and private litigants’ subpoena power, the free flow of information to the public will be curtailed.

This has been achieved through an overlapping patchwork of legal protection for journalists’ sources. This includes not only the possibility of a privilege under the First Amendment of the U.S. Constitution, but also protection under:

• State statutes (“Shield laws”)
• State constitutions
• State and federal common law
• Rules of evidence and procedure

What follows is a summary of the basic categories of the primary laws governing this area.

State Statutes, Common Law and Rules

Forty-nine states currently recognize some form of a reporter’s privilege, either by state statute, court rule or judicial interpretation of state or federal law. (Only Wyoming has not recognized some form of reporter’s privilege.)

Many state courts have recognized a reporter’s privilege under their own state constitutions, state common law or by creating their own rules of court procedure. Additionally, thirty-two states plus the District of Columbia have state shield laws, varying in scope of coverage and protection.

Each of these shield law statutes protects from disclosure, in at least certain circumstances, the identities of confidential sources. But no two shield laws enunciate in the same way who may invoke the privilege, in which proceedings they may apply, and the information that may be shielded.

Despite these many variations, these laws can be roughly categorized as follows:

1. Pre-1950 Shield Laws

All but one of the 12 shield laws enacted before 1950 (the exception being Arkansas) offer absolute protection for journalists asked to disclose their sources in legal or governmental proceedings, but typically addressed only confidential sources. The narrow scope of these laws is explained by the fact that Maryland’s similarly narrow statute served as the model for several of these. They vary otherwise, including in their definitions of who is covered.

Since being adopted, these laws have been revised in various ways. For example, protection now extends to radio and television journalists and shields not only confidential sources but also unpublished material.

2. Branzburg-Era Shield Laws

The second era of shield law legislation began with the laws passed by Louisiana (1964), Alaska (1967) and New Mexico (1967), spanning the period from just before until just after the Supreme Court’s decision in Branzburg. These laws addressed only the protection of sources, not information, but introduced elements that would become characteristic of the Branzburg-era legislation that followed, i.e., acknowledging the interests supporting piercing of the privilege when a court finds that disclosure is “essential” to the public interest or to prevent injustice and addressing the difficulties faced by defamation plaintiffs when a reporter invokes a testimonial privilege while the media defendant asserts a defense to which the shielded information would be relevant.

Then, between 1970 and 1974, ten states enacted shield laws , three of which did so in the wake of the series of subpoenas that led to Branzburg and the other seven following the Supreme Court’s 1972 decision in that case. These laws addressed for the first time the application of the privilege to information, as opposed to merely sources. Several broadly and absolutely protected sources and information, others experimented with qualifications.

3. Modern Era Shield Laws

In 1982, Illinois passed a shield law and in the 1990s, six more shield laws were passed: Colorado (1990), the District of Columbia (1992), Florida (1998), Georgia (1990), North Carolina (1999) and South Carolina (1993). These laws mark the “modern era” of shield legislation.

Generally, modern shield laws do not distinguish between sources and information, apply a qualified privilege across the board and exclude information obtained as a result of eyewitness observations of criminal or tortious conduct.

In 2006, Connecticut passed a shied law, and in April 2007, Washington passed a shield law.

Federal Law

Two federal shield law bills were introduced in Congress in 2007. The House version, H.R. 2102, would provide a qualified privilege for confidential sources and unpublished information. The Senate version, S. 2035, would provide a qualified privilege for confidential sources and information received in confidence.

And, even in the absence of an applicable federal law tailored for the protection of journalists’ sources, generally applicable laws and court rules, such as evidence rules, give courts power to protect journalists from abuses in the discovery process.

Rule 501 of the Federal Rules of Evidence:

Courts are empowered to recognize a federal common law reporter’s privilege under Rule 501 of the Federal Rules of Evidence. Indeed, the legislative history of this rule—which was enacted three years after the Branzburg decision—indicates that Congress expected this rule to be used to create a reporter’s privilege. Rule 501 provides:

“Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.”

And the recognition of a federal common law reporter’s privilege under Rule 501 is entirely consistent with Branzburg, which noted that even the power of a grand jury is limited such that:

“’the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.” Branzburg, 408 U.S. at 688, quoting United States v. Bryan, 339 U.S. 323, 331 (1950) (emphasis added).

Federal Rule of Civil Procedure 26

The rules governing civil court allow for much broader discovery than the criminal rules, but also give courts broad room to maneuver in protecting parties from unreasonable discovery. The rules allow a court to enter a protective order “which justice requires” to protect a party from “annoyance, embarrassment, oppression or undue burden or expense.” They also allow a court to limit discovery if it is unreasonably cumulative or is obtainable from a more convenient or less burdensome source, if the party seeking discovery had ample opportunity to obtain the discovery previously, or if the burden of the discovery outweighs its benefit.

Federal Rule of Criminal Procedure 17(c)

Under this rule, the court may quash or modify a subpoena if compliance would be “unreasonable or oppressive.” Rule 17(c) has been interpreted to allow subpoenas to be served only for materials that are “admissible as evidence” at trial.

Justice Powell—the crucial fifth vote in Branzburg—held out hope that future developments in the law might give rise to a court-recognized privilege (a/k/a “common law privilege”) and, in fact, these developments have come to pass, as described below.
For a complete compendium of the shield laws, see the MLRC website at http://www.medialaw.org/Template.cfm?Section=Home&Template=/ContentManagement/ContentDisplay.cfm&ContentID=5350.
Robert D. Lystad and Malena F. Barzilai, “Reporter’s Privilege: Legislative and Regulatory Developments,” White Paper on Reporter’s Privilege (Media Law Resource Center, Inc., 2004).
Maryland 1896; New Jersey 1933; Alabama 1935; California 1935; Arkansas 1936; Kentucky 1936; Arizona 1937; Pennsylvania 1937; Ohio 1941; Indiana 1941; Montana 1943; Michigan 1949.
New York 1970; Nevada 1971; Rhode Island 1971; Minnesota 1973; Nebraska 1973; Oregon 1973; North Dakota 1973; Tennessee 1973; Delaware 1974; Oklahoma 1974.
In Branzburg, the Supreme Court explicitly noted that, despite its holding that the First Amendment does not protect a journalist who has actually witnessed criminal activity from revealing his/her information to a grand jury, there could still be other potential sources of protection for the confidentiality of journalists’ sources, including by federal statute. As the Court said:
“At the federal level, Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience may from time to time dictate. “ 408 U.S. 665, 706 (1972).
As cited in Committee on Communications & Media Law, Association of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper (2004).

STORIES THAT WOULD HAVE GONE UNREPORTED
WITHOUT CONFIDENTIAL SOURCES

Just type “Pulitzer Prize” and “confidential source” into a search engine and you will get a sense of the number of important stories that have depended on confidential source material. Here are some examples of these and other significant stories that you may not have learned about were it not for the journalists’ ability to use confidential sources:

Government Operations

 Watergate: The most famous example is Carl Bernstein and Bob Woodward’s exposure of the Watergate scandal based, in part, on information obtained from a confidential source known then only as “Deep Throat” and recently revealed to be W. Mark Felt, former Deputy Director of the FBI.
 The Pentagon Papers: The leaked, secret Defense Department history of the Vietnam War published by the New York Times and Washington Post, which revealed, among other things, the government’s intention to go to war even when President Johnson promised not to.
 The Iran-Contra secret “arms-for-hostages” deal: Using anonymous sources, Walter Pincus (who later won the Pulitzer Prize for his reporting on Osama bin Laden) reported a series of stories during the Iran-Contra affair, which confirmed that secret shipments of arms had been sent to Iran to obtain the release of American hostages.
 The powerful U.S. Senator from the state of Washington, Brock Adams, was exposed as a rapist, and chose not to run for reelection the following term. (Adams had served six terms in Congress before his appointment to become President Carter’s Secretary of Transportation, and then served two terms as Senator.) The victims would not have told their stories without confidentiality.
 The Washington Post’s 1992 reports by Walter Pincus on the Bush administration’s review of presidential candidate Bill Clinton’s passport files prompted the appointment of an independent counsel.
 The Washington Post’s reports by Walter Pincus on allegations of espionage at America’s nuclear weapons labs prompted a major FBI counter-espionage investigation and ultimately led former Energy Secretary Richardson to fire weapons designer Wen Ho Lee (as well as Lee’s subsequent indictment for mishandling classified information).

 The Washington Post’s Dana Priest revealed that the CIA had been holding and interrogating suspected terrorists in secret prisons in Eastern Europe.
 James Risen and Eric Lichtblau of the New York Times discovered that the National Security Agency began a domestic surveillance program shortly after the attacks of September 11 by which it monitored the phone calls of people inside the United States without obtaining warrants.
 Former Albany (New York) County Executive James Coyne was convicted by a jury on six felony counts after a series of articles alleging kickbacks and payoffs, all of which were sparked by a tip from a confidential source.
 A Houston (Texas) County Executive decided not to seek re-election after the publication of a series of articles detailing allegations of misconduct, which reports were made possible by various confidential sources.
 The cultural scene in upstate Saratoga, New York was preserved after anonymous members of the board of the Saratoga Performing Arts Center confidentially revealed that financial concerns threatened the New York City Ballet’s ongoing use of the Center as its summer home. A reporter was able to break the story just hours after the board had secretly voted to end the relationship with the Ballet—and a public outcry followed.
 Major facilities at an Oregon nuclear weapons plant were shut down and showdowns at other plants around the nation soon followed after reporting based on unnamed confidential sources, one of whom was an inspector on contract from the U.S. Department of Energy.
 James Taricani (WJAR-TV/Providence) won the Edward R. Murrow award from Radio and Television News Directors Association for his report on strip clubs in Providence and campaign contributions to former Mayor Vincent “Buddy” Cianci, Jr., a report in which confidential sources played a critical role.
 Robert Dudney, reporter for Dallas Times Herald, said that without information from confidential sources he could not have written articles about irregularities in the Dallas County Sheriff’s bail bond system.
 John Fried wrote an article for Long Beach Independent Press Telegram that exposed the practice of “patient-dumping” by L.A. County emergency aid programs, which prompted a government investigation; that information could not have been reported without the assistance of unnamed physician sources.

Warfare and Military Affairs

 Walter Reed: In February 2007, Dana Priest and Anne Hull of The Washington Post published a two-part series exposing poor conditions for soldiers being treated at the Walter Reed Army Medical Center in Washington, D.C., using tips from soldiers and interviews with government officials. As a result, the Secretary of the Army, the commander of the medical center and the Army Surgeon General all resigned, Congressional hearings were held to investigate the situation, and President Bush appointed a special commission to look into the matter.
 Abu Ghraib: In April 2004, CBS News’ 60 Minutes II first broadcast, and The New Yorker first published, photos concerning abuses at Abu Ghraib prison in Iraq, which photos had been provided to the press through anonymous sources within the American military. Soon thereafter, more information about widespread accounts of Iraqi prisoner abuse began to surface, again through anonymous sources within the American military.
 Unreported for 36 years, Toledo Blade reporters Michael Sallah, Mitch Weiss and Joe Mahr won a 2004 Pulitzer Prize for their examination of the government’s secret investigation into the killings of unarmed Vietnamese citizens by an elite U.S. Army unit in the 1960s—apparent war crimes for which no charges were ever filed.
 Confidential sources in the Navy provided information that led to the author breaking a story in the San Diego Union Tribune revealing that Navy aviators had assaulted two civilian women and a female naval officer at the Tailhook convention in 1991.
 Three-part series that revealed how high-ranking military officials failed to investigate and prosecute rape and domestic abuse allegations on military bases.
 Publicity following 1977 article by Walter Pincus in The Washington Post on the development of the neutron warhead generated public opposition and cancellation of that weapons program by President Carter.
 An analysis of the case of confessed spy Aldrich H. Ames and its aftermath.
 Pulitzer prize winning Washington Post articles by Walter Pincus in 2000 and 2001 on the intelligence community, Osama Bin Laden, terrorism and the war in Iraq.

Private-sector Business and/or Financial Affairs

 Sealed court documents, tape recordings and other materials provided confidentially led to a series of stories concerning world-class athletes’ use of illegal drugs, including one world-record sprinter admitting to a grand jury that he used performance-enhancing drugs.
 Three prominent trustees of a Houston, Texas hospital board resigned after a series of articles based on a confidential source revealed their misconduct. The hospital was later fined $1 million for abusing its tax-exempt status.
 After trouble getting access to public documents, information from valuable confidential sources led to the reporting of a scandal that resulted in the head of a top upstate New York engineering firm (Laberge Group) pleading guilty to fraud.

Many of the examples listed here originally appeared in “The Empirical Case: Proving the Need for the Privilege,” by Steven D. Zansberg, White Paper on the Reporter’s Privilege (Media Law Resource Center, Inc., 2004); and Committee on Communications & Media Law, Association of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper (2004), at 15-16.
As testified by Walter Pincus, via affidavit, in Wen Ho Lee’s lawsuit against the Department of Energy (in which Wen Ho Lee asserts a violation of the Privacy Act), Pincus’s reporting on this topic and the other topics listed in this summary was based primarily on information provided by confidential sources.
Eric Nadler, et al., “Accusers Glad Adams Out of Race,” Seattle Times, March 2, 1992; Editorial, “’Brock’s Problem’—A Final Sad Chapter to 31-Year Public Career,” Seattle Times, March 2, 1986; Susan Gilmore, et al., “8 More Women Accuse Adams—Allegations of Two Decades of Sexual Harassment Abuse - And a Rape,” Seattle Times, March 1, 1992; Michael Fancher, “A Story That Had To Be Told,” Seattle Times, March 1, 1992; Susan Gilmore, at al., “Why Women Are Reluctant to Accuse Powerful Men—Therapist: ‘We Live in a Culture That Stigmatizes Victims,’” Seattle Times, March 1, 1992.
Dana Priest, “CIA Holds Terror Suspects in Secret Prisons,” The Washington Post, November 2, 2005.
James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” The New York Times, December 16, 2005.
Greg B. Smith, “A Civic Center Contractor Is Said to Talk of Payoffs,” Albany Times Union, May 7, 1989; Michael McKeon, “Kickback Inquiry Sought,” Albany Times Union, May 8, 1989; Kenneth C. Crowe II & Michael McKeon, “Coyne Denies Payoffs,” Albany Times Union, May 9, 1989; John Caher, “Second Time Around: Coyne Guilty on 6 Counts,” Albany Times Union, August 6, 1992.
See Bob Sablatura & Andrea D. Greene, “Lindsay Scraps Re-election Plans,” Houston Chronicle, August 1, 1993.
See Timothy Cahill, “Curtains to Close on Ballet at SPAC,” Albany Times Union, February 14, 2004; “Ballet Already Mulling Offers,” Albany Times Union, February 20, 2004.
See, e.g., Alex MacLeod, “Hanford Lies at Center of Much Larger Story,” Seattle Times, December 14, 1986; Eric Nadler, et al., “The Bomb Factories,” Seattle Times, December 14, 1986; Eric Nadler, “Contamination Abounds at DOE’s Ohio Uranium Mill,” Seattle Times, December 15, 1986; Eric Nadler, “Politicians, Public Questioning Candor of Hanford Officials,” Seattle Times, December 16, 1986; Eric Nadler, “Seeds of Nuclear Age May Be Bearing Bitter Fruit,” Seattle Times, December 15, 1986; Eric Nadler, “Earthquake Could Topple Hanford Plant—Despite Risk, DOE Restarted,” Seattle Times, January 11, 1987.
Lori Robertson, “Uncovering Misery at Walter Reed,” American Journalism Review, April/May 2007.
“Buried Secrets, Brutal Truths,” Toledo Blade, available at http://www.toledoblade.com/apps/pbcs.dll/section?Category=SRTIGERFORCE.
Gregory L. Vistica, as recounted by him in Fall from Glory: The Men Who Sank the U.S. Navy (1995).
Christian Miller, “A Colombian Town Caught in a Cross-Fire,” L.A. Times, March 10, 2002; Miles Moffeit & Amy Herdy, “Betrayal in the Ranks,” Denver Post, November 16–18, 2003.
Mark Fainaru-Wada and Lance Williams, “Sprinter Admitted Use of BALCO ‘Magic Potion,’” San Francisco Chronicle, June 24, 2004.
See Bob Sablatura, “Former Gov. White Leaves Hermann Hospital Board,” Houston Chronicle, January 1, 1992; “IRS Fines Herman $1 million,” Houston Chronicle, October 25, 1994.
Brendan Lyons, “Laberge Admits Role in Bribery Case,” Albany Times Union, Oct. 14, 2004.