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B) seek to have the subpoena withdrawn or attack it in court, which can get expensive.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, 17^th Edition. McGraw-Hill, 2011.