Designed to mimic a PSA ad campaign, the Journalism Advocate was our idea to introduce you all to subpoenas and warrants involving newsrooms and journalists. Originally going to be a more video-based project, focus shifted towards the blog once the realization hit that some information couldn't be tightened even further for short video.
The PSA is embedded below, followed by several posts with important concepts and information. In order:
PSA
Branzburg v. Hayes (1972)
Subpoenas and Warrants
A Federal Statute?
A look at two modern cases
PSA Transcript
Unaired 2nd PSA Transcript
Also check out our YouTube channel at http://www.youtube.com/journalismadvocate, and feel free to comment on either site!
If you'd like to see the resources page or our full bibliography of sources, ask Dr. Cornwell for a copy.
Enjoy!
Courtney and Caitlin
10.17.2010
The Journalism Advocate PSA
Check out our PSA, which talks about subpoenas, warrants and the journalist's privilege.
Branzburg v. Hayes (1972)
First and only case in which the Supreme Court addressed the issue of whether a Journalist has a First Amendment privilege to refuse to testify in a judicial proceeding.
A consolidation of four cases involving three journalists subpoenaed by grand juries to reveal confidential sources or testify about sources’ alleged criminal activities. Journalists argued their First Amendment rights would be violated if they were forced to disclose confidential information to grand juries.
Justices had split opinions, but the majority concluded that while newsgatherers have some First Amendment protection, a journalist does not have an absolute First Amendment based privilege. The Court decision did warn that subpoenas must not be used to harass the media or interfere with the journalist-source relationship.
During this case, the Stewart Principles were formed to try to create a balance, putting the burden of proof on the prosecution in order to compel a journalist to testify in a criminal proceeding. The prosecution must prove:
- There is probable cause to believe that the newsman has information that is clearly relevant to a specific violation of law.
- The information cannot be obtained by alternative means less destructive of First Amendment rights.
- There is a compelling and overriding interest in the information
Though denying First Amendment privilege, the Supreme Court acknowledged that Congress and state legislatures have the power to pass statutes to create a testimonial privilege for journalists who need protection.
“Until now the only testimonial privilege for unofficial witnesses that is roorted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do no enjoy. This we decline to do.”
- Branzburg v. Hayes, 408 U.S. 665, 1972
See ‘A Federal Statute?’ and ‘Subpoenas and Warrants’ entries to understand why there is currently no federal shield law and how Congress has acted to provide limited protection.
Sources
Branzburg v. Hayes, 408 U.S. 665, 1972
Gomsak, Mark. “The Free Flow of Information Act of 2006: Settling the Journalist’s Privilege Debate.” 45 Brandeis L.J. 597, Spring 2007.
Overbeck, Wayne. Major Principles of Media Law, 2007 Ed. Wadsworth, 2007. P 325
Pember, Don R. and Calvert, Clay. Mass Media Law, 17th Edition. McGraw-Hill, 2011.
Subpoenas and Warrants
Congress passed the Privacy Protection Act of 1980 in response to the Supreme Court’s Branzburg v. Hayes decision that the First Amendment does not ban searches of newsrooms (or reporter’s homes, included from here on in the term ‘newsrooms’). The Act requires any agencies—federal, state and local—that want materials from a journalist to first get a subpoena.
A subpoena is a written command for a person to attend court. A warrant is a document authorizing an agency to search premises (like newsrooms). The difference between the two is a subpoena makes the journalist bring their materials forward and a warrant allows forceful acquiring without the journalist’s consent.
If a journalist or newsroom ignores a subpoena and refuses to disclose their materials, they can be held in contempt of court, fined and jailed. There have been a few extreme cases where, if a subpoena is not obeyed, the court has ruled that the journalist made up the story. This demonstrates the gravity of the situation an unwilling newsroom must face.
The specifics for getting a subpoena differ, but lawyer Douglas Lee simplifies the criteria:
“Most [state and federal courts] generally provide that the privileged information cannot be obtained unless the party seeking the information can establish that:
- The information is highly material and relevant to the case at issue.
- A compelling need exists for the information.
- The information cannot be obtained by other means,”
Subpoenas aren’t handed out unless the information withheld is important; therefore, journalists must consider various factors—personal ethics, promises of confidentiality, the party seeking their material, the newsroom—before accepting or ignoring a subpoena.
Sources
Lee, Douglas. “Press: Shield laws.” http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws
Pember, Don R. and Calvert, Clay. Mass Media Law, 17th Edition. McGraw-Hill, 2011.
A Federal Statute?
The Free Flow of Information Act has been through the congressional loop several times, attempting to create a federal ‘shield law’—a nationwide statute to protect journalist’s confidentiality promises in court. The Act was created in response to the continued lack of a definitive ruling about rights of the press from the Supreme Court.
Remember, if a proposed bill is not passed by the end of Congress’s two-year session, it is considered dead and can be reintroduced at the start of the next session. The most recent version is the Free Flow of Information Act of 2009:
“An act to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”
- H.R.985, 111th Congress, 1st Session, April 1, 2009
It has been passed in the House and is currently on the Senate Legislative Calendar.
Sources
Smith, Kevin. “Struggling to Report: The Fight for a Federal Shield Law.” 2009. http://www.spj.org/shieldlaw.asp
H.R.985, 111th Congress, 1st Session, April 1, 2009, P IIB
S. 2831: Free Flow of Information Act of 2006. Govtrack.us: a civic project to track Congress. http://www.govtrack.us/congress/bill.xpd?bill=s109-2831
H.R.985 Free Flow of Information Act of 2009. Open Congress for the 111th United States Congress. http://www.opencongress.org/bill/111-h985/show
Gomsak, Mark. “The Free Flow of Information Act of 2006: Settling the Journalist’s Privilege Debate.” 45 Brandeis L.J. 597, Spring 2007.
“The Free Flow of Information Act of 2006: A brief analysis by The Reporters Committee for Freedom of the Press.” http://www.rcfp.org/shields_and_subpoenas/specter.html
A look at two modern cases
Vanessa Leggett v. United States
In June 2001, a federal grand jury subpoenaed author Vanessa Leggett’s tape-recorded conversations regarding Robert Angleton, who was being charged with the murder of his wife Doris. Leggett refused to turn in her tapes, arguing that a journalist’s privilege protected her from having to release the research. U.S. District Judge Melinda Harmon ruled that the court would not recognize that privilege. On July 20, 2001, Leggett was held in civil contempt of court and jailed for 18 months. The Supreme Court refused to hear her appeal, and she was released after 168 days.
Judith Miller v. United States
After many journalists, including Judith Miller of the New York Times and Matthew Cooper of TIME Magazine, published the name of covert CIA agent Valerie Plame, they were subpoenaed to appear before a grand jury to name their source. While some broke confidentiality when threatened with prison, Judith Miller refused. She was held in civil contempt of court and jailed on July 6, 2005; the Supreme Court refused her appeal. Miller was released from jail after 85 days when her source waived her promise.
As shown, the Supreme Court has yet to consider a journalist First Amendment privilege case since Branzburg v. Hayes.
Sources
Eliason, Randall D. “Leakers, Bloggers, and Fourth Estate Inmates: the Misguided Pursuit of a Reporter’s Privilege.” 24 Cardozo Arts & Ent LJ 385, 2006.
Lee, Douglas. “Press: Shield laws.” http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws
Pember, Don R. and Calvert, Clay. Mass Media Law, 17th Edition. McGraw-Hill, 2011.
PSA TRANSCRIPT
“News gathering is not without First Amendment protections…
Without some protection for seeking out the news, freedom of the press could be eviscerated.”
- U.S. Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 1972
The 1972 Branzburg v. Hayes case remains the only Supreme Court decision regarding journalists’ protection under the First Amendment.
Since the court decided that the First Amendment does not ban searches of newsrooms, it leaves journalists in the position where they can be forced to release confidential source material or face jail time.
But, it’s not open season for journalists.
Agencies that want their materials must get a subpoena first. There are two kinds of materials they could want:
One, work products, which are the things created or used to share information with the public;
And two, documentary materials: formally recorded information like government reports, footage or photographs.
In order to subpoena either, which means to get a written court order, certain requirements must be met and the information behind them must come from non-media sources:
In criminal cases, the information sought must be essential to the investigation, meaning it likely has to do with the guilt or innocence of a party.
In civil cases, the information to be gained must be essential to an important case of civil litigation.
Subpoenas may not be used as a ‘fishing’ tactic.
A warrant may be obtained instead if police believe the reporter has committed a crime,
If there is reason to believe someone will be harmed,
Or if police think materials might be destroyed if they first acquire a subpoena.
If served a subpoena, the newsroom can:
A) cooperate, and possibly damage the reporter-source relationship
B) seek to have the subpoena withdrawn or attack it in court, which can get expensive.
Or C) ignore the order and be held in contempt of court.
Subpoenas and warrants are meant to limit privacy invasion.
But the confidentiality problem reporters face is a double-edged sword:
Journalists can be imprisoned by law for not disclosing material when ordered by subpoena or warrant, but they could also be sued by their source for breaking a promise of confidentiality.
For more information on newsroom confidentiality and the law, visit the--journalism—advocate—dot—blogspot—dot—com.
Talent:
Josh Canu
Kaitlyn Folsom
Caroline Gilmore
Ben Miles
Joseph Puralewski
Rachel Reiner
Sources:
Branzburg v. Hayes, 408 U.S. 665, 1972
“Confidential Sources and Information: Newsroom searches.” The First Amendment Handbook. http://www.rcfp.org/handbook/c04p08.html
Lee, Douglas. “Press: Shield laws.” http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws
Pember, Don R. and Calvert, Clay. Mass Media Law, 17th Edition. McGraw-Hill, 2011.
UNAIRED 2nd PSA TRANSCRIPT
“The courts display confusion regarding how journalists may assert the privilege not to disclose confidential information.” - Mark Gomsak
The debate over journalist privilege is still active.
In 2001, Texan author Vanessa Leggett refused to disclose her murder trial research to a grand jury. She was held in civil contempt of court and served 168 days in federal prison.
In 2005, New York Times reporter Judith Miller was held in civil contempt of court for refusing to reveal the source that leaked her the name of CIA Agent Valerie Plame. She spent 85 days in jail before her source released her from her confidentiality promise.
Some argue for a federal shield law to protect journalists and their confidential sources from having to testify before grand juries.
For more information on newsroom confidentiality and the law, visit the--journalism—advocate—dot—blogspot—dot--com
Sources:
Eun, Eunnice. “Journalists Caught in the Crossfire: Robert Novak, the First Amendment, and Journalist’s Duty of Confidentiality.” 42 Am. Crim. L. Rev. 1073, Summer 2005.
Gomsak, Mark. “The Free Flow of Information Act of 2006: Settling the Journalist’s Privilege Debate.” 45 Brandeis L.J. 597, Spring 2007.
Lee, Douglas. “Press: Shield Laws.” http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws
Subscribe to:
Posts (Atom)