Newsgather's Privilege There is an inevitable conflict between journalists desire to keep the identity of information confidential and government’s desire.

Newsgather's Privilege

• There is an inevitable conflict between journalists desire to keep the identity of information confidential and government’s desire to know who supplied information.

• The result is a conflict leading to the issues of newsgather’s privilege

Newsgather’s Privilege

• Contempt of court - – Two kinds that your book talks about

• Direct contempt - involves an act which violates the decorum of the court. -- usually for a reporter’s misconduct

• Indirect contempt - involves a disrespect that is remote from the courtroom -- journalists could be cited for writing unfavorably about a judge


• Civil versus Criminal Contempt– Civil contempt is a form of coercion: a person

who disobeys a court order can be fined or locked up until the person decides to cooperate with the judge

– Criminal contempt is a punishment for an act of disrespect for the court such as a photographer taking an unauthorized picture in the courtroom


• Courts curtail indirect contempt - Bridges v. California - Supreme court prohibited contempt citations for public statements about pending cases unless it could be shown that the comments created a clear and present danger to the administration of justice.


• Bridges ruling was applied to indirect contempt citations in Pennekamp v. Florida– In Criag v. Harney court said that contempt

power should not be used to punish newspapers unless there was no doubt that the administration of justice would be seriously hurt.


• Privilege means an exemption from a citizen’s normal duty to testify when ordered to do so in a court or another official information gathering proceeding.

• Reporter’s Privilege means an exemption from having to testify about confidential matters


• Common law tradition did not recognize journalists as those who could claim privilege.– States have adopted specific laws to provide

privilege for reporters– By 2006, some 31 states have enacted some

kind of shield laws that provide protection to reporters


• A flood of contempt citations in the 1970s led to the Court declaring that there was not constitutional privilege for newsmen (Branzburg v. Hayes)– The 5 to 4 ruling led to some confusion because

there was no clear cut majority view by the court.


• U.S. v. Caldwell-- important because the 9th Circuit rules that the reporter had a First Amendment right to keep his sources confidential.

• In Pappas and Branzburg the Courts ruled that reporters did not have the constitutional right to keep sources confidential

• Branzburg the court ruled against journalists


• Baker v. F&F Investments - civil case the court noted the journalist had a constitutional right not to reveal his source

• By 1980 the number of federal courts had recognized a limited reporter’s privilege on a variety of legal grounds including the 1st Amendment and federal common law.


• Courts have frequently ruled against the news media when the information held by the reporters appear to be crucial to deciding a case


• Riley v. Chester - the Court said specific requirements had to be met before a reporter should be required to disclose confidential information:– 1. The information had been sought elsewhere

– 2. The information could not be obtained from other sources

– 3. The information was clearly relevant to the case


• Shoen v. Shoen (I and II) - book author, like a reporter can invoke privilege unless all other possible sources of information had been exhausted

• In the second case, the court delivered a strong affirmation of the reporter’s privilege concept


• By mid-2000s some federal courts were backing away from the concept of reporter’s privilege– McKevitt v. Pallasch - Judge rejected the notion

of reporter’s privilege saying that he did not see why “there needs to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”


• Judith Miller was eventually sent to jail for refusing to reveal her sources during a federal investigation of a news leak– Washington DC appeals court rejected Miller’s

claim of privilege under the First Amendment, relying on the Branzburg decision

• Some states have recognized privilege and others have not.


• Caldaro v. Tribune Publishing - notable for the court’s strong and strident language for condemning the concept of privilege:– “…the public must know the truth to make

value judgments, not the least of which regard its government…(T)he only reliable source of that truth is a “press”…which is free to publish that truth without government censorship.”


• Shield Laws - Congress has never passed a federal shield law– Attempts were made after the Branzburg

decision but Congress got bogged down with details

– Congress has a difficult time agreeing to a definition of a journalist

– E.G. - Are bloggers journalists?


• About 31 states have enacted a Shield Law– They vary widely in philosophy and scope– Some have been rejected by state courts– Some states have modified their constitutions to

include a reporter’s shield within the it – Some shield laws have been weakened by court

decisions


• Shield Laws fall into three groups– 1. Absolute privilege laws– 2. Laws that only the privilege if the

information is published or broadcast– 3. Qualified for limited privilege that may have

one or more exceptions allowing the courts to disregard them

Newsgather’s Privilege• Judges and lawyers don’t like the concept

of Shield– Strips the courts of authority to do their

important work– Some courts see shield laws as an obstacle to

justice– Ammerman v. Hubbard Broadcasting - court

overturned the shield law saying the legislature doesn’t have the power to restrict the judge’s authority in this way


• Even when the law has been placed in the constitution, the courts sometimes look for ways around the law– Delaney v. Superior Court - said that

California’s law does not apply when a judge determines that the information is crucial to the defendant in a criminal case - Defendant’s federal constitutional right to a fair trial trumps the state shield law


• Attention has been focused on journalists refusal to comply with court orders to reveal sources– Book talks about Jim Taricanni, Mathew

Cooper and Judith Miller– Farr v. Superior Court - after Farr left

journalism, the judge demanded the name of sources - Farr refused and was cited for contempt


• Farr spent two years in a series of cases fighting the courts– The court decided that Farr was refusing to

obey the court order based on a moral principle– Continued incarceration would not induce him

to obey the court– The court allowed an exemption based on a

clearly articulated moral principle

Newsgather’s Privilege• Myron Farber Case -Farber, a NYTimes

reporter, spent 40 days in jail and faced $285,000 in fines for refusing to name the sources of information surrounding the mysterious deaths at a NJ hospital– Court said that state shield law did not apply

when a criminal defendant needs information from a journalist for his defense

– Eventually the state law was strengthened and the governor pardon’s Farber


• Cohen v. Cowles Media - Supreme Court ruled that the First Amendment does not protect the media from being sued by a news source if a promise of confidentiality is broken– Doctrine of promissory estoppel would allow

Cohen to sue Cowles Media despite the First Amendment


• Newsroom Searches - Zurcher v. Stanford Daily - Supreme Court ruled the Constitution does not prevent unannounced search of a newspaper, even when no member of the paper is suspected of a crime– Search must meet the normal requirements of

specificity and reasonableness as detailed in the search warrant

Newsgather’s Privilege• Congress passed the Privacy Protection Act

in 1980 which effectively overrules the Zurcher decision– Law bans most newsroom searches by federal,

state and local enforcement officials– Law allows searches

• Person holding info is suspected of a crime• If a person’s life is in jeopardy• If serving a subpoena might cause the records to be

destroyed

Newsgather's Privilege There is an inevitable conflict between journalists desire to keep the identity of information confidential and government’s desire.

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