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.
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