9a. Privilege

The question of privilege for journalists has to do with whether communication with a confidential source is privileged in the same way that would apply to communication between a lawyer and a client or a member of the clergy and a parishioner.

Confidential sources are important to journalists and to society in that they help journalists exercise the Constitutionally protected “watchdog” function. Journalists are determined to protect their sources — Many have gone to jail to do so and, in fact, promises of confidentiality are considered to be contracts that may be enforced.

According to an article by Stephen Bates, the first incident of this kind was in 1848 when reporter John Nugent of the New York Herald was jailed by Congress for refusing the reveal the source of a leak about a treaty with Mexico.  In recent years, the problem of protecting sources has shown up in films like Absence of Malice and Nothing But the Truth.*  In both of those fictional situations

In the 1960s, reporters were often called in front of grand juries to testify about sources who said they smoked marijuana or took other drugs. Usually the reporters refused to testify and, as a result, were fined or spent a small amount of time in jail. These cases culminated in the Branzburg v Hayes case, where reporters for the Louisville Courier Journal refused to give information about sources for an article on marijuana cultivation in Kentucky. The case went to the Supreme Court, which was evenly split on the question of whether reporters had a privilege to shield their sources.

Some states, in response, passed shield laws, and currently at least 31 have shield laws on the books. Some, like Maryland, had shield laws in place for over a century.

According to the Reporter’s Committee for Freedom of Information:

“Courts have always recognized the concept of “privileges,” allowing certain individuals to refuse to testify, out of an acknowledgment that there are societal interests that can trump the demand for all evidence. Journalists need to emphasize to both the courts and the public that they are not above the law, but that instead they must be able to remain independent, so that they can maintain their traditional role as neutral watchdogs and objective observers. When reporters are called into court to testify for or against a party, their credibility is harmed. Potential sources come to see them as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes.”

Incidents involving protection of sources:

In RE Farber, 1978 — New York Times reporter Myron Farber refused to comply with a court subpeona to turn over notes from an investigation into an ongoing murder case.

In 2001, Vanessa Leggett, a book author, spent more than five months in detention for refusing to answer questions about her sources.

In 2004, New York Times reporter Judith Miller spent 12 weeks in jail for refusing to name a source in the Plame Affair involving the identity of a CIA agent.

In 2006, freelance videographer Joshua Wolf was jailed by a Federal district court for refusing to hand over videotapes he made during a demonstration in July 2005 in San Francisco. Wolf was jailed for 226 days, longer than any other journalist in U.S. history (so far), beating the five month record set in 2001 by Vanessa Leggett.

Journalists often make a claim that their communication with a source is privileged under the First Amendment. Privilege in this context is similar to attorney-client privilege or the privileged communication between clergy and parishoners. What it means is that reporters should not be forced to testify in a court or grand jury proceeding about their sources, nor should they have to turn over informtion that could implicate sources.

In some cases, journalists may have crucial evidence for the court. But in most cases, such as the grand jury hearings about CIA leaks to New York Times reporter James Risen in 2010, the evidence a journalist would “simply amount to icing on the cake.”

Reporters are not supposed to be called before grand juries if the government had not previously exhausted other means to gather information or if enough evidence for indictment had already been obtained.

Why do journalists deserve special treatment? The argument is that the specific Constitutional guarantee of freedom of the press must entail a freedom to gather information. Supporting this argument is James Madison’s famous statement: “Popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy.” While this applies to the FOIA law, it also applies to a reporter’s relationship with a source in that this relationship is central to press freedom.

The major Supreme Court decision in this area was evenly split in the Branzburg case in 1972 (below). Some state legislatures have passed “Shield Laws,” in effect giving the claim of privilege limited recognition.

For an explanation of why confidentiality is good for the public interest, see this account of a rural Virginia prison break.

Historical cases:

** Branzburg v Hayes, 1972 -- Marijuana and black panther cases where reporters refused to reveal sources. Court was evenly split 4-4 with one vote saying reporter privilege was appropriate in some circumstances.

** Cohen v Cowles Media, 1991 -- Republican public relations guy Dan Cohen sued after being promised confidentiality by a Minneapolis Star Tribune reporter. Justice White said “The First Amendment does not confer on the press a constitutional right to disregard promises that could otherwise be enforced under state law…”

Silkwood v. Kerr McGee, 1984 — In preliminary motions, courts denied Kerr McGee’s attempt to get documentary filmmakers to reveal sources. The backstory to the Silkwood case, however, is very interesting. Karen Silkwood was a worker at a defense plant processing plutonium for atomic bombs. She was on her way to a meeting with a New York Times reporter to discuss security violations a the plant when the car she was driving was forced off the road. A film made about the incident used other confidential sources. When the plutonium plant owners wanted those sources revealed, the courts refused.

Shoen v. Shoen, 1993 — Book author may invoke reporter privilege when subpoenaed for information when all other avenues to the information have not been exhausted.

Chevron oil company  allowed to subpoena Joe Berlinger outtakes from documentary film  “Crude” in 2010.    (It didn’t help Chevron anyway).

Newsroom searches

* Zurcher v. Stanford Dailiy, 1976 — newsroom searches were not illegal according to the courts; In 1980, Congress passed the Privacy Protection Act and overruled the Zurcher decision. Under the law, subpoenas are preferred to ex parte proceedings such as search warrant requests, which only be issued:

  • when the person holding the information is suspected of a crime and
  • there is reason to believe the materials must be seized immediately to prevent death or injury and
  • there is reason to believe that giving notice would result in materials being changed or hidden or destroyed and
  • the materials were not produced as a result of a court order.

In April, 2010, a newsroom search in Harrisonburg, Va, on the campus of James Madison University, was greeted with outrage by media media watchdogs and the press.

State courts have recognized that newspapers may withhold materials from the government unless officials make a compelling case to the contrary, a process that is supposed to play out in court in response to a subpoena. In this case there was no subpoena, no court arguments and no recognition that raiding a newspaper makes a mockery of the First Amendment.” said a Washington Post editorial.

In June, 2011, the Commonwealth Attorney apologized and paid $10,000 to cover the legal costs of the JMU student newspaper.

Bridges v. California, 1941 -- As a point of historical interest, the Bridges case involved “Indirect contempt by publication” which was struck down except in cases of clear and present danger to administration of justice. It marked the end of the judiciary’s attempts to directly control public opinion about the courts through its ability to hold journalists in contempt.

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Nothing but the Truth, 2008, is a terrific film about a journalist who refuses to reveal her source and is jailed for contempt of court.  At one point the journalist’s lawyer argues before the U.S.  Supreme Court:

“In 1972 in Branzburg v Hayes, this court ruled  against the right of reporters to withhold the names of their sources before a grand jury, and it gave the power to the government to imprison those reporters who did. It was a 5-4 decision. Close. In his dissent in Branzburg, Justice Stewart said, ‘As the years pass, the power of the government becomes more and more pervasive. Those in power,‘ he said, ‘whatever their politics, want only to perpetuate it, and the people are the victims.‘ Well, the years have passed, and that power is pervasive. Ms Armstrong could have buckled to the demands of the government. She could have abandoned her promise of confidentiality. She could have simply gone home to her family. But to do so would mean that no source would ever speak to her again, and no source would ever speak to her newspaper again, and then tomorrow when we lock up journalists from other newspapers, we’ll make those publications irrelevant as well, and this will make the First Amendment irrelevant. And then how will we know if a president has covered up crimes? Or if an army officer has condoned torture? We, as a nation, will no longer be able to hold those in power accountable to those whom they have power over. And what then is the nature of government when it has no fear of accountability?”