This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
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(Feb 2006)
Thank you.
Elliott Parker
====================================================================
Samuel A. Terilli, J.D.
Assistant Professor, School of Communication, University of Miami
Partner, Ford & Harrison LLP
100 S.E. 2d Street, Suite 4500,
Miami, FL 33131
Abstract: Reporters Skating On Judge Posner's Thin Ice in a Branzburg Maze
Recent events and cases, from the outing of Valerie Plame to leaks
about the anthrax investigation, are forcing a reexamination of
reporter-source confidentiality and Branzburg v. Hayes. Judge
Posner's decision in McKevitt v. Pallasch and several other recent
decisions have interpreted Branzburg narrowly, questioned the
existence of any First Amendment privilege, and directed the press to
other sources of law for protection. These decisions represent
persuasive authority that the press should not ignore.
Conflicts between reporters and the legal system (i.e., grand juries,
lawyers, litigants, prosecutors, and judges) are nothing new, but
recent events and judicial decisions[1] require a reexamination of
the confusing 1972 Supreme Court decision in Branzburg v.
Hayes.[2] The question is whether the First Amendment or another
source of law protects a reporter ordered by a court to disclose of
information obtained in the course of reporting.
Among the most important recent judicial opinions is Judge Posner's
in McKevitt v. Pallasch,[3] a case in which the troubling facts
arguably made the result (compelled disclosure) almost certain, if
not inevitable. The McKevitt decision is important for three
reasons. First, the result in McKevitt should remind everyone that
bad facts count and unappealing claims invite retrenchment through
one legal rationale or another. Second, Judge Posner cogently
questioned the logic used by many courts to recognize a First
Amendment privilege for journalists. He did this by returning to the
text of the various opinions in Branzburg, questioning courts that
had previously based a privilege on Branzburg[4] and suggesting
courts that had applied the privilege to non-confidential sources
were "skating on thin ice."[5] Third, Judge Posner concluded the
door was open to protect journalists through other, more limited
forms of protection not tied to a First Amendment privilege. Aside
from the fact the press may seek shield law from the appropriate
legislature (state or federal), the press may also argue for
protection under common law, a state's constitution (for state cases)
or the inherent power of a court to protect witnesses from harassment
or undue burdens. These cues may become significant as the press
confronts new efforts to force journalists to testify.
The non-constitutional strategies raised by Judge Posner lack the
stature or panache of a First Amendment privilege, but they have
distinct advantages. They have an egalitarian appearance. Neither
the common law nor the inherent protective power of a court elevates
the press above everyday, non-media witnesses. Courts could,
however, take into the account the particular risks faced by
journalists in defining harassment and undue burdens. Judges may not
be as hostile to case-by-case determinations grounded in fairness as
they would be to less flexible constitutional privileges. And,
these limited approaches have roots in Branzburg and, unlike the
long-sought First Amendment privilege, were not rejected by
Branzburg. Ready or not, therefore, the press needs to pay close
attention to Judge Posner and reevaluate the strategy for protecting
journalists from official harassment, overreaching subpoenas and
unnecessary or unnecessarily broad inquiries into sources or other information.
This paper begins by returning to the source of the scholarly and
legal gloss: the text of Branzburg. The second section examines the
decision written by Judge Posner in McKevitt v. Pallasch, as well as
several other recent decisions that have also addressed the issues
raised by Judge Posner. The paper concludes the compelled-testimony
question should be framed differently: framed, that is, not as a
question of First Amendment privilege, but as a question of
protection, not privilege, and as protection grounded in the plain,
even narrow, holding of Branzburg. Implicit in this analysis is the
acknowledgement by the press that not all reporter-source
relationships and not all journalistic efforts are as worthy of legal
protection as others.
The Branzburg Haze: The Text Revisited
A few scholars have begun to examine current controversies pitting
the press against prosecutors or litigants seeking disclosure of
sources and other information and they have made insightful
observations and analyses in the context of other cases and trends in
media law and news reporting. [6] However, little work has been done
regarding the issues impact of McKevitt v. Pallasch[7] and other
recent decisions questioning the basis for a First Amendment
privilege.[8] This paper focuses on the McKevitt approach to
Branzburg and its potential impact upon not only subpoenaed
journalists who have received leaked information about some
previously unknown or undocumented corruption or other impropriety,
but also those who have received information allegedly as part of an
effort to obstruct a proper investigation or tarnish a person's
reputation. An obvious question is whether any current controversy
will provide the vehicle for the Supreme Court to address the
privilege question again and what will be the impact of
McKevitt. The context of that vehicle will be critical, as was the
context of the Branzburg case, and may decide whether the Supreme
Court ultimately follows the logic of McKevitt v. Pallasch and a
developing line of similar decisions.
There is no shortage of excellent commentary on, analysis of, and
arguments for extending, ignoring or reinterpreting the decision in
Branzburg v. Hayes or regarding the general subject of the reporter's
privilege, whether rooted in the First Amendment, common law, state
law or elsewhere.[9] Since the early 1970s and the research by
Professor Vincent Blasi and others[10] as well as the Supreme Court's
expressed, though largely mistaken, concern about the empirical
evidence concerning the impact compelled disclosure,[11] additional
scholarly research has been done regarding state shield laws and
other forms of protection as well as the incidence and impact of
subpoenas.[12] Several scholars have also periodically returned to
Branzburg and focused on the relationship of the Powell concurrence
to the majority opinion and dissenting opinions.[13] Hope and good
policy arguments spring eternal, however: Many writers and some
courts have found in Branzburg and succeeding opinions grounds for
recognition of a qualified reporter's privilege or at least no
impediment to the recognition of a privilege.[14] Without
surrendering such hope, journalists and scholars would be well served
if they cautiously re-read Branzburg for its most logical meaning and
not to torture the text in order to move Justice Powell from one side
of the issue to the other.
The place to begin is the text of the four opinions in Branzburg v.
Hayes and the specific factual context of the four cases that led to
those opinions.[15] This context defines the scope of the Branzburg
and thus the limits of Branzburg for future application. Each of the
cases arose in the context of a reporter interviewing, observing or
recording individuals at least arguably engaged in criminal
activity. The alleged crimes ranged from the manufacture, use and
possession of illegal narcotics to alleged civil disorders,
assassination threats against the President, and mail fraud. None of
the cases involved government or private whistleblowers. No one
waived confidentiality. Each involved a sitting grand jury and
active investigation assumed to be in good faith. Some of the
subpoenas related to published reports, some to unpublished
information, but this distinction was less significant than the
unresolved fault line running through at least two of the factual
scenarios: whether the subpoenas and grand juries were seeking not
only direct observations or first-hand accounts of criminal conduct,
but also information merely relevant to a grand jury investigation.
The first case involved Paul Branzburg's observations of and
published article about two persons synthesizing hashish from
marijuana in Jefferson County, Kentucky.[16] Entitled "The Hash They
Make Isn't To Eat," the article appeared in the Louisville
Courier-Journal on November 15, 1969 and revealed "how a copious
quantity of marijuana was converted into the more potent drug hashish
for which a locally profitable and ready market impliedly
existed."[17] The article also stated that Branzburg promised not to
reveal the identity of the two hashish makers. A local grand jury
ten days later subpoenaed Branzburg, who appeared and refused to
identify anyone who had possessed or manufactured the illegal
drugs.[18] A state trial court judge ordered disclosure and denied
Branzburg's contention that Kentucky's shield law protected his
refusal to answer.[19] Kentucky's Court of Appeals also denied his
petition and specifically held that Kentucky's shield law[20]
provided him with a privilege to refuse to identify a source or
informant who provided information, but did not protect his refusal
to testify regarding events and people he had personally observed.[21]
The second case also involved Branzburg. This article appeared on
January 10, 1971, and detailed the use of illegal drugs in Frankfort,
Kentucky.[22] The article stated that the reporter spent two weeks
interviewing drug users and observing some of them using illegal
drugs. He reported several conversations with and observations of
unnamed users. He was again subpoenaed before a local grand jury and
he moved to quash the subpoena. The local state court denied the
motion and the Kentucky Court of Appeals again denied his appeal,
reaffirming its construction of the state's shield law.[23] The
Court of Appeals distinguished and criticized the decision of the
Ninth Circuit Court of Appeals in Caldwell v. United States[24] that
had recognized a reporter's privilege.[25]
The third case, In re Pappas, involved Paul Pappas, a Massachusetts
television station reporter who reported on July 30, 1970 regarding
civil disorders, including fires and "other turmoil" in New Bedford,
Massachusetts.[26] In the course of reporting the story he entered a
barricaded area and photographed and recorded a statement read by a
Black Panther leader. Later Pappas reentered the same area and went
inside the headquarters of the Black Panthers, but agreed as a
condition of entry not to disclose what he observed or heard inside
other than an expected police raid. He stayed for three hours and
left when the raid failed to materialize. He published no story
about what happened inside, but was subsequently subpoenaed by a
local grand jury. He appeared, but refused to disclose what he had
observed or heard inside the headquarters. The grand jury served a
second subpoena and he moved to quash on First Amendment
grounds. His motion was denied. The Supreme Judicial Court of
Massachusetts took judicial notice of the seriousness of the civil
disorders in New Bedford and concluded the grand jury investigation
was appropriate.[27] This court rejected outright the privilege
recognized in Caldwell, but noted that the presiding judge had a duty
to supervise grand juries and prevent "oppressive, unnecessary,
irrelevant, and other improper inquiry and investigation," though the
witness had the burden of showing such impropriety.[28] The court
noted, however, that it did not know the specific questions at issue
before the grand jury or did not have any motion to hold Pappas in
contempt for refusals to answer specific questions:
We have only general statements concerning (a) the inquiries of the
grand jury, and (b) the materiality of the testimony sought from
Pappas. The record does not show the expected nature of his
testimony or what likelihood there is of being able to obtain that
testimony from persons other than news gatherers.[29]
As a result, the court could not ascertain whether Pappas could be
compelled to answer the unknown questions, though it affirmed the
rejection of the asserted privilege and ordered further proceedings
consistent with its opinion.
The fourth case was the Caldwell case from California.[30] Earl
Caldwell, a reporter for the New York Times, covered the Black
Panther Party and other militants. A federal grand jury issued a
subpoena to him on February 2, 1970. The subpoena required testimony
and production of notes and recordings of interviews "given him for
publication by officers and spokesmen of the Black Panther Party
concerning the aims, purposes, and activities of that
organization."[31] After some negotiations, a second subpoenaed was
served, omitting the requirement to produce documents. Caldwell
moved to quash on the grounds of the breadth of the request and the
First Amendment. The government's response included, among other
points, the revelation that the grand jury was investigating possible
violations of federal criminal statutes, including threats and
assassination attempts or conspiracies against the President, civil
disorders, interstate travel to incite riots, mail fraud and
swindles.[32] The government cited various public statements made by
Black Panther leaders about killing Richard Nixon, their role in the
revolutionary struggle and violent overthrow of the government, and
their possession of guns. The government added that the Black
Panther Party's Chief of Staff had already been indicted for making
threats against the President and that the government had immunized
other persons and taken other steps to obtain evidence of the alleged
crimes.[33]
The district court denied the motion to quash, but did issue a
protective order, citing the First Amendment. The court limited
Caldwell's required testimony to information given to him for
publication and protected his confidential information and
sources.[34] The court held that the government must demonstrate
"a compelling and overriding national interest in requiring Mr.
Caldwell's testimony" and that such an interest could not be served
"by any alternative means."[35] The term of the grand jury expired
following this ruling and a new subpoena was served. Caldwell again
refused to appear and was held in contempt. Caldwell appealed the
contempt order and the Ninth Circuit Court of Appeals ruled in his
favor, recognizing a qualified testimonial privilege under the First
Amendment for reporters because compelled testimony would deter
present and future sources from providing information and would cause
the reporter to censor his writing to avoid subpoenas.[36] The court
emphasized its concern for the impact of such subpoenas on the flow
of news to the public and held the government could overcome this
privilege only by showing compelling reasons.[37]
The bottom line result in Branzburg was a 5-4 decision reversing
Caldwell, and affirming the state court decisions requiring the
testimony by Branzburg and Pappas and requiring at least the
appearance of Caldwell.[38] The dissenting justices can be dealt
with quickly and then set aside, not because the dissenters were not
eloquent, cogent or correct, but because the foci of the problem for
the news media are the majority opinion of Justice White[39] and the
concurring opinion of Justice Powell.[40] Joined by Justices Brennan
and Marshall, Justice Stewart wrote a dissenting opinion criticizing
the majority for its "crabbed view of the First Amendment,"
emphasizing society's interest in the free flow of information, and
articulating a three-part test the government would have to satisfy
before compelling testimony by a journalist.[41] Justice Douglas
also wrote a dissent, expressing his absolutist view of the First
Amendment and his conclusion that a journalist need not ever appear
unless accused of a crime (subject to the Fifth Amendment privilege
against self-incrimination).[42]
The key to the majority opinion and to the concurrence by Justice
Powell can be found in the following passage in the first paragraph
of Justice White's legal analysis:
The heart of the claim is that the burden on news gathering resulting
from compelling reporters to disclose confidential information
outweighs any public interest in obtaining the information. [emphasis
added][43]
The majority simply did not accept the policy argument that the flow
of information to journalists and through them to the public would be
sufficiently threatened to jeopardize First Amendment rights and
outweigh the interests in the flow of information to grand juries,
especially when the reporter had first-hand evidence or evidence of
undisputed relevance. Further, the majority stated that even if
there were a privilege and even if the privilege required the
government to demonstrate a compelling interest in the
investigations, the government's interests in "extirpating the
traffic in illegal drugs, in forestalling assassination attempts on
the President, and in preventing the community from being disrupted
by violent disorders" would be compelling and the journalists would
likely have information that would help the government determine if
criminal conduct occurred and if an indictment were appropriate.[44]
The majority opinion rested on four legs: the absence of an
empirically supported argument that First Amendment interests would
be seriously impaired and impaired sufficiently to outweigh the
public's interest in grand jury investigations; the characterization
of the duty to provide testimony and evidence as a duty of general
applicability and not a special infringement upon the news media;
mechanical and doctrinal problems in the application of a
journalist's privilege (e.g., the definition of journalist and the
dilemma posed by satisfaction of any test and required disclosure of
a confidential source);[45] and finally, the presence of other means
of protecting the news media from improper inquiries.
The perceived absence of empirical evidence supporting the media's
position was central to the majority's description as "incidental"
and "indirect" the burden placed on the media by compulsory
testimony.[46] Although the majority misapprehended the true
significance of the empirical studies in terms of investigative
reporting, the state of the record was used by the majority to pave
the way for its argument that the media had "no special immunity from
the application of general law" and thus no special immunity from the
duty to provide evidence of criminal conduct observed.[47] The
majority further amplified this argument by recounting the history
and traditional role of grand juries in Anglo-American history and by
reciting a number of statutes and access limitations generally
applicable to the news media as well as individuals and commercial
entities.[48]
The doctrinal and mechanical problems perceived by the majority were
no less significant than the objections based on the empirical
evidence and general applicability of the testimonial
obligation. First, the majority noted that the claimed privilege was
not absolute, but was conditional or qualified.[49] Thus, the
government could presumably satisfy the privilege in some cases,
requiring disclosure of the confidential information and leading to
the fears articulated by the press (i.e., discouraging future sources
and constricting the flow of information). The majority concluded,
therefore, that if it accepted the press argument, then nothing less
than an absolute privilege would suffice to avoid case-by-case, ad
hoc determinations by judges. Second, the majority characterized
freedom of the press as a personal right not confined to newspapers
and periodicals. For that reason, Justice White expressed serious
concern regarding the definition of the press and the risk of "sham"
newspapers seeking such protection.[50] Third, the majority refused
to embroil courts in "preliminary factual and legal determinations"
of the elements of any test to be satisfied by the government to
overcome a qualified First Amendment privilege.[51]
The fourth leg of Justice White's opinion may be the most
interesting and productive for press advocates in the future,
particularly if it is tied to further development of an empirical
record. It is also the linkage to the concurring opinion of Justice
Powell. This leg consists of what Justice White termed "the
pragmatic view" that the press is not helpless in the face of
"harassment or substantial harm."[52] First, he pointed out that if
the press turns out to be correct that law enforcement interests will
suffer as a result of subpoenaing journalists, the problem will solve
itself as prosecutors experience the feared negative consequences and
discontinue such inquiries. Second, and more persuasively, Justice
White repeated his tacit acknowledgement of the First Amendment's
relevance on some level:
Finally, as we have earlier indicated news gathering is not without
its First Amendment protections, and grand jury investigations if
instituted or conducted other than in good faith, would pose wholly
different issues for resolution under the First Amendment. Official
harassment of the press undertaken not for purposes of law
enforcement but to disrupt a reporter's relationship with his news
sources would have no justification. Grand juries are subject to
judicial control and subpoenas to motions to quash. We do not expect
courts will forget that grand juries must operate within the limits
of the First Amendment as well as the Fifth.[53]
Thus, Justice White expected presiding judges to protect the press,
as they would and must protect any witness from official harassment
and oppressive burdens. This is the thread amplified by Justice
Powell in his concurrence. Specifically, Justice Powell referred to
harassment of journalists, to investigations not conducted in good
faith, to the absence of a legitimate need on the part of law
enforcement and to sought-after information "bearing only a remote
and tenuous relationship to the subject on the
investigation."[54] Nothing in Powell's brief opinion suggested the
First Amendment established any privilege apart from the standard
obligation of the presiding judges and the courts to prevent abusive
conduct on the part of government.
This distinction between a privilege required by the First Amendment
and the right of journalists to move to quash, as might any person, a
subpoena that amounted to harassment is not mere form over
substance. The distinction is one of burden. In the former
situation, the government would have the burden of satisfying the
test required by the privilege in every case to which the privileged
applied. Failure to carry the burden would result in the quashing of
the subpoena. Under the latter, the journalist would have the burden
of showing harassment, lack of good faith, remoteness, lack of
legitimate need or some other similar problem.
Thus parsed, the majority and Powell opinions in Branzburg hold that
a journalist may be compelled to provide evidence of observed
criminal conduct, absent some showing of harassment or bad faith:
Thus, we cannot seriously entertain the notion that the First
Amendment protects a newsman's agreement to conceal the criminal
conduct of his source, or evidence thereof, on the theory that it is
better to write about crime than to do something about it.[55]
This passage sums up the Court's holding, but also reveals a possibly
open question. The question arises from the majority's consideration
of confidential sources "not engaged in criminal conduct" but in
possession of information "suggesting illegal conduct by others" or
relevant to a criminal investigation.[56] The majority acknowledged
the likely and rational fear such a source might have regarding job
security or personal safety, but the majority concluded the evidence
failed to show there would be a significant diminution of the flow of
such information to the public through the press if the Court
rejected the asserted First Amendment privilege.[57] The majority
plainly preferred to trust law enforcement officials in criminal
investigations and trust what it characterized as the "symbiotic"
relationship between reporters and sources who want their views
propagated – a relationship the majority concluded would withstand
the absence of a "virtually impenetrable constitutional shield,
beyond legislative and judicial control,…to protect a private system
of informers operated by the press to report on criminal conduct…."[58]
Had the holding been limited to journalists who themselves observe
a crime or even to sources who engage in criminal activity, the
result in Branzburg might have been less troubling to the
press. However, the majority also noted that an obligation to
testify would not threaten sources "not involved with criminal
conduct and without information relevant to grand jury investigations
[emphasis added]."[59] References of this sort to information merely
relevant to a grand jury investigation could be interpreted broadly
and dangerously in terms of First Amendment freedoms, but the Court
did not leave the press completely unprotected in that regard.
Although the language of opinion by Justice White is somewhat vague
in terms of its application to sources not engaged in criminal
conduct or to information not obtained by a reporter through
first-hand observation, the admonitions of Justices White and Powell
regarding harassment of the press and tenuous investigative tactics
have particular relevance to grand jury inquiries seeking second-hand
information or other information only indirectly related to a
possible criminal indictment. The Branzburg majority and Justice
Powell may have offered no hint of a broad First Amendment privilege,
but they also gave no hint of any tolerance for fishing expeditions,
for routine government use of press subpoenas out of laziness,
politics or ineptitude, or for investigations into anything but
serious criminal matters (e.g., illegal drug manufacture and use,
political assassinations, and mail fraud). It is this approach on
which recent lower court decisions have increasing focused and it is
this approach that warrants further consideration and meaningful development.
Judge Posner, Bad Facts, and Thinning Ice
The Seventh Circuit Court of Appeals in McKevitt v. Pallasch[60]
closely read the opinions in Branzburg v. Hayes[61] and reframed the
debate regarding certain reporter-source issues. Imagine a group of
enterprising journalists with a contract to write a biography of the
key witness for the prosecution of an alleged terrorist. They have
tape-recorded interviews of that key witness, their source. The
alleged terrorist seeks those recordings as part of his defense. The
identity of the key witness is known and has indicated he does not
object to releasing the tapes. The journalists object,
however. They do so not to protect the source, but apparently to
protect the marketability of the biography. This is the McKevitt v.
Pallasch case[62] and it proved to be the unfortunate vehicle for
Judge Posner's examination of Branzburg v. Hayes. Not only did the
Seventh Circuit Court of Appeals refuse to stay the subpoena as
requested by the journalists, the court explained its reasons and
debunked any interpretation of Branzburg v. Hayes as the basis for a
First Amendment privilege.
The case arose when Michael McKevitt, being prosecuted in Ireland for
membership in a banned organization and for directing terrorism,
asked the district court for an order requiring production of the
tape-recorded interviews. McKevitt wanted the tapes for use in the
cross-examination of David Rupert, who was believed to be the
prosecution's key witness against McKevitt. The journalists in
possession of the recordings had a contract to write a biography of
Rupert, whose identity was not confidential. Rupert had indicated,
according to the court, he did not object to the production of the tapes.
Judge Posner had no trouble dismissing the journalists' interest in
the marketability of their work as insubstantial when compared with
the government's interest in cooperating with a foreign
prosecution. Similarly, Judge Posner quickly dismissed any
suggestion of possible commercial motive on the part of McKevitt for
"stealing" the work-product of the journalists.[63] Judge Posner did
not even find any basis to conclude the journalists would be forced
to abandon their work as a result of production of the tape
recordings. Further, Judge Posner stressed the fact that the source,
David Rupert, did not object to the release of the interviews the
reporters were trying to withhold. This fact suggested Rupert had
waived any interest he might have had in confidentiality. Judge
Posner thus found no common law, copyright-based or other basis for
staying the order to produce the tapes.
Although the opinion stands for important propositions regarding the
production of evidentiary materials for foreign prosecutions and
regarding common law misappropriation and copyright-related
objections to attempts to obtain the intellectual property of
reporters, the real impact of the case will be felt as a result of
Judge Posner's analysis of the opinions in Branzburg v. Hayes and the
journalists' claim that their tapes were "protected from compelled
disclosure by a federal common law reporter's privilege rooted in the
First Amendment."[64] Judge Posner directly challenged the argument,
"rather surprisingly" accepted by numerous courts, that Justice
Powell's concurrence (and his call for case-by-case determinations)
taken together with the four dissenting justices recognized or
created a reporter's privilege.[65] Judge Posner was equally
dismissive of courts that treated the Branzburg majority opinion as
non-existent or a mere plurality opinion.
The questionable analysis of the courts finding some sort of
privilege was not the most important issue for Judge Posner:
A more important point, however, is that the Constitution is not the
only source of evidentiary privileges, as the Supreme Court noted in
Branzburg with reference to the reporter's privilege itself.[66]
Judge Posner acknowledged that some cases have "cut the reporter's
privilege free from the First Amendment" and he then pivoted in his
analysis to make three key points before turning to the possible
non-constitutional sources of protection for the press.[67]
First, Judge Posner implicitly and logically dismissed the empirical
evidence question that seemed to trouble, at least on the surface,
the majority in Branzburg. He did so by invoking not studies, but
common sense regarding government and the press:
The federal interest in cooperating in the criminal proceedings of
friendly foreign nations is obvious; and it is likewise obvious that
the newsgathering and reporting activities of the press are inhibited
when a reporter cannot assure a confidential source of confidentiality.[68]
Second, Judge Posner dealt with Branzburg by accepting that the case
demonstrated that the interest of the press in maintaining the
confidentiality of its sources was not absolute and by acknowledging
that the facts of McKevitt were quite different from (i.e., weaker
than) the facts of the four Branzburg cases. He concluded the
journalists had no conceivable interests in confidentiality because
the identity of the source was not confidential and the source
himself did not object to disclosure. Third, Judge Posner quickly
carved up the courts that had held there was a reporter's privilege
for non-confidential sources or information to protect against
harassment and oppressive burdens on the press: "since these
considerations were rejected by Branzburg, even in the context of a
confidential source, these courts may be skating on thin ice."[69]
Having analyzed the reality of Branzburg as well as the reality of
reporting and confidential sources, Judge Posner picked up the thread
left viable by the majority opinion and Powell concurrence: the
superfluity of a privilege because "courts should simply make sure
that a subpoena duces tecum directed to the media, like any other
subpoena duces tecum, is reasonable under the circumstances, which is
the general criterion for judicial review of subpoenas."[70] Judge
Posner did not articulate standards for such reasonableness, but
opined in the negative that it would "difficult to see what possible
bearing the First Amendment could have on the question of compelled
disclosure" when the information sought from the reporter did not
come from a confidential source.[71] The invitation to lower court
examination of reasonableness and the context of any promise of
confidentiality, including any waiver, could not have been
clearer. Judge Posner also raised the possibility of a federal
common law privilege not rooted in the First Amendment.[72] He noted
that while one case denied, without explanation, there might be a
common law privilege, most other cases generally ignored the
possibility of privilege not based on the First Amendment.
The close reading of Branzburg in McKevitt is not
aberrational. Other courts have begun to apply McKevitt's logic in a
variety of contexts and have in the process found at least some
protection for the media or addressed the federal common law question.[73]
In the context of the Wen Ho Lee controversy, the district court for
the District of Columbia analyzed Branzburg and concluded "the
Supreme Court expressly and resoundingly declined to recognize such a
privilege on its own."[74] The court added that the Supreme Court
left it to the lower courts to decide what protection the First
Amendment might provide in individual cases. Under that circuit's
precedent, the court found no reason to protect the journalists under
the First Amendment or otherwise because the information sought was
central to Dr. Lee's Privacy Act claim and because, before
subpoenaing the journalists, Dr. Lee made extensive discovery efforts
(depositions, interrogatories, document production, etc.) to
ascertain through government defendants the identity of the
sources.[75] The court had no question about the legitimacy of Dr.
Lee's Privacy Act claim and concluded Dr. Lee's need to discover the
sources of the government leaks outweighed any press` interest in
"concealing…possible governmental complicity (if such there were) in
the revelation to the news media of private, personal, and acutely
hurtful information about Dr. Lee…."[76]
In the Frank Corrente public corruption case out of Providence, Rhode
Island, the district court[77] and the First Circuit Court of
Appeals[78] similarly returned to the text of Branzburg and found no
basis for a First Amendment privilege, but proceeded to explore
lesser degrees of protection that might be afforded under the First
Amendment and the law of that circuit.[79] Finding a good-faith
criminal investigation, non-frivolous claims, reasonable attempts to
use alternative sources, and a strong public interest in the
corruption investigations and fair trials, the district court had no
trouble granting the special prosecutor's motion to compel answers to
questions regarding the identity of the source who leaked the tape in
violation of the trial court's order.[80]
In response to the journalist's argument that the public interest
demanded protection to assure a free flow of information and that his
use of confidential sources had often led to investigations and
prosecution of individuals engaged in crimes, the court also had no
trouble in distinguishing this case from those other, laudable efforts:
That argument might have some merit in a case where the information
provided by the source prompts an investigation or prosecution of
alleged wrongdoing that, otherwise, would not have been
pursued. However, this, clearly, is not one of those cases. Here,
when the Corrente tape was provided to Taricani, the investigation
and prosecution in the "Plunder Dome" cases were well
underway. Furthermore, the tape already had been presented to the
Grand Jury and was potential evidence in the upcoming
trials. Consequently, dissemination of the tape contributed nothing
to the investigation or prosecution of the alleged offenses. On the
contrary, it only threatened to compromise the Grand Jury's
investigation and/or violate the defendants' right to a fair trial.[81]
The First Circuit affirmed and cited with approval the analysis of
one "distinguished judge" (Judge Posner) regarding the degree to
which Branzburg provided "protection beyond what ordinary relevance
and reasonableness requirements would demand," though noting that its
own circuit was more protective of the press.[82] The essence of
that protection in the First Circuit was a "`heightened sensitivity'
to First Amendment concerns" and a balancing of considerations
(whether constitutional or prudential).[83]
In the controversy over the disclosure to syndicated columnist Robert
Novak, and reporters Judith Miller and Matthew Cooper, among others,
of Valerie Plame's status as a covert Central Intelligence Agency
operative on weapons of mass destruction, both a district court[84]
and the Court of Appeals[85] for the District of Columbia Circuit
similarly read Branzburg and found no First Amendment privilege for
journalists. All three judges on the Court of Appeals panel agreed
that Branzburg created no First Amendment privilege and employed a
textual analysis very similar to Judge Posner's. The three disagreed,
however, in separately filed concurring opinions regarding the
existence and application of any federal common law privilege
protecting journalists. The common law privilege question arose as a
result of Rule 501 of the Federal Rules of Evidence, enacted by
Congress in 1975, three years after the Branzburg decision. Rule 501
authorized federal courts to interpret the common law on matters of
testimonial privileges "in light of reason and experience."[86] One
of the panel members, Judge Sentelle, concluded Rule 501 did not
authorize the recognition of a reporter's common law privilege and
that in light of Branzburg only the Supreme Court could recognize
such a common law privilege.[87] Another panel member, Judge
Henderson, concluded that the court need not reach the Rule 501 issue
because even if a common law privilege existed, the government
proffered sufficient evidence to overcome it.[88] The third panel
member, Judge Tatel, concluded that under Rule 501 there was a
privilege, though he agreed that the government proffered sufficient
evidence to overcome it.[89] In these opinions the fact that the
government was seeking the person or persons who had leaked a covert
agent's identity, possibly for political reasons, came through clearly.
The recent decision that may be regarded as the brightest glimmer of
hope by the press is The New York Times Company v. Gonzales (the
"Miller-Shenon" case).[90] In this case, The New York Times sought a
declaratory judgment that the First Amendment, the federal common law
and the guidelines of the U. S. Department of Justice protected the
telephone records of Times reporters Judith Miller and Philip Shenon
from disclosure to the government. The records were in the custody
of an unidentified telephone company, covered time periods of 23 and
18 days after September 11, 2001, and were sought as part of
investigation into the identity of government employees who allegedly
leaked information to the reporters about plans to seize assets and
search the premises of two Islamic charities in the fall of
2001. The reporters, after receiving tips, called the charities for
comment about the anticipated freezing of assets, but they denied
that they tipped-off the charities about any impending search. The
Times and other newspapers reported at various times about the new
scrutiny of all Islamic charities and about plans to freeze or block
the use of assets, but there were no published news reports of
planned raids before those raids occurred. Nonetheless, the
government argued that the calls from the reporters to the charities
disclosed the planned raids, increased safety risks, and increased
the likelihood of the destruction or concealment of evidence.
Judge Sweet in a lengthy and sweeping opinion concluded that, though
the Department of Justice Guidelines created no private enforcement
rights, there was an applicable qualified reporter's First Amendment
privilege and a qualified common law privilege. Further, he held the
qualified privileges covered third-party telephone records that would
reveal the identity of sources and held the government failed to
overcome the privileges by showing materiality, relevance, necessity
or the unavailability of the information from other sources (e.g.,
searches of its own internal records for the identities of the
suspected leakers). Judge Sweet acknowledged the conflict among the
circuits regarding the interpretation of Branzburg, but concluded
that the Second Circuit recognized a qualified First Amendment
privilege based on Branzburg. While Judge Sweet finessed whether
Justice Powell's concurring opinion defined the majority's holding or
simply stated his own view, he failed to address the text of the
concurrence limiting the relevance of the First Amendment to efforts
to harass or punish the press.
Judge Sweet's decision awaits appellate review by the Second Circuit
Court of Appeals, but there is one salient difference between its
facts and those of the cases discussed above. As unappealing as a
tip-off to a suspect may be, there has been so far no convincing
evidence the reporters in the Miller-Shenon case received information
intended to obstruct the raid or no evidence suggesting they knew or
suspected they might be obstructing a raid. Furthermore, the
prospect of government reviewing the telephone records of reporters,
records that could reveal far more than a single, errant source, is a
very chilling prospect in a way that the disclosure of some political
operative's name is not.
Conclusions: Trade Skates For a Boat When the Ice Is Melting
Press advocates eloquently make the case for recognition of a First
Amendment privilege, qualified though it may be, protecting reporters
from compelled disclosure, but the text of neither the Branzburg
majority opinion[91] nor Powell concurrence[92] supports this
privilege. Perhaps the Supreme Court will take notice of the growing
number of state shield laws[93] and even of the outrage and
legislative response following a police search of a newsroom just a
few years after the Branzburg cases;[94] perhaps the Court will build
upon its limited recognition of First Amendment rights of access to
criminal trials and related proceedings, grounded in tradition,
history and the checking function of the news media and public
scrutiny;[95] and, perhaps the Court will recognize a theory of the
First Amendment under which the role of an unfettered press is so
valuable that government is constrained by the Constitution from
compelling the disclosure of information absolutely or unless some
test is satisfied.[96] Or, perhaps the Court will continue to look
upon journalists as courts look upon other witnesses and continue to
direct journalists to the legislative processes to obtain protection.[97]
Judge Posner in the McKevitt v. Pallasch[98] has driven home three
salient and related points about the privilege question. First, the
facts count and the facts in McKevitt were quite unappealing as a
case for recognition of a constitutional privilege for
journalists. Arguably, the journalists in that case were seeking to
protect their own financial interests and not a principle, a source
or the public; and, in any event, the source was not confidential and
did not object to disclosure. Non-confidentiality and apparent
waiver by the source would appear to eliminate for most judges any
concern about the impact of disclosure on newsgathering, absent
evidence of harassment, oppressive burdens or bad faith.[99] The
importance of the factual context of such claims is echoed in the
cases following McKevitt, from one unappealing extreme -- the
possibly obstructionist leak in the Corrente prosecution[100] -- to
the opposite extreme of a far more appealing case -- the
understandable fear of government rummaging through telephone records
in the Miller-Shenon case.[101]
Second, Judge Posner has returned the discussion to an important
textual source, the opinions in Branzburg v. Hayes.[102] He quite
reasonably argued that post-Branzburg decisions basing a First
Amendment privilege on Branzburg are perhaps not irrefutably wrong,
but are, in his words, skating on thin ice, audacious and open to
question. In the White majority opinion and in the Powell
concurrence, there are indeed references to the press not being
without First Amendment protection, but at no point did White or
Powell suggest they meant the First Amendment provided a
privilege. In the context of their expressed concern for harassment
of the press through bad-faith investigations and for the general and
prudential power of courts to protect witnesses from undue burdens as
well as harassment, those references must stand for something other
than a constitutional privilege. Rather, those references must mean
that targeting of the press by prosecutors, investigators, and even
grand juries as a form of punishment would violate the First Amendment.
Third, by focusing on the text of Branzburg, Judge Posner has
reminded us that the door is open to other ways of protecting
journalists. The references to the First Amendment and the
prudential power of courts stand for the proposition that courts can
and must protect all witnesses, including the press, from harassment,
undue burdens and bad-faith investigations. These can be meaningful
protections. Within these references there is room for recognition
of the unique risks faced by the press, just as there would be room
for recognition of the unique problems of any witness. Thus,
journalists need not fear a return to the actual text of
Branzburg. They must make, however, a more complicated
argument. One disadvantage for the press is the shift to it of the
burden of showing harm, be it harassment, bad-faith or an oppressive
burden. Recognition under Rule 501[103] of a privilege grounded in
federal common law might solve this problem, but through either
approach the courts will need to strike a balance between competing
values: the free press and the judicial process.
Recognition of a federal common law privilege or vigilant use of the
court's inherent and prudential power to protect witnesses would not
elevate the press above everyday citizens, but would allow the courts
to focus on the issues most important to the press and society in
this context (e.g., confidential sources revealing misconduct and not
themselves engaging in misconduct; harassment of journalists; and
unnecessary or undue burdens on witnesses, including
journalists). If the Branzburg ice completely melts, this approach
would provide a lifeboat to the press, neither burdening nor
privileging the press beyond what would be fair and appropriate with
any similarly situated witness.
[1] See infra pp. 16-24.
[2] 408 U.S. 665 (1972).
[3] 339 F.3d 530 (7th Cir. 2003).
[4] Id. at 532.
[5] Id. at 533.
[6] E.g., Clay Calvert and Robert D Richards, Journalism, Libel Law
and A Reputation Tarnished: A Dialogue With Richard Jewel and His
Attorney, L. Lin Wood, 35 MCGEORGE L. REV. 1, 5-6 (2004)(comparing
Wen Ho Lee and Hatfill controversies to intense media coverage of
Richard Jewel and other cases); Joel Kurtzberg and Karen Kaiser,
First Amendment Reporter's Privilege Challenged in Privacy Act Case,
22-SPG COMM. LAW. 14 (Spring 2004)(examining Wen Ho Lee case and law
of D.C. Circuit regarding the asserted reporter's privilege); John
Padilla and Alex Wagner, The "Outing" of Valerie Plame: Conflicts of
Interest in Political Investigations After The Independent Counsel
Act's Demise, 17 GEO. J. LEGAL ETHICS 977 (Summer 2004)(examination
of conflict of interest provisions of new special counsel regulations).
[7] 339 F.3d 530 (7th Cir. 2003).
[8] E.g., In Re Special Proceedings, 373 F.3d 37 (1st Cir. 2004).
[9] An entire book could be written just about the scope of the
commentary over the past 32 years, but there are a number of articles
that stand out and are worthy of consideration. E.g., Jennifer
Elrod, Protecting Journalists From Compelled Disclosure: A Proposal
For A Federal Statute, 7 N.Y.U. J. LEGIS. & PUB. POL'Y 115 (2003);
Linda L. Berger, Shielding The Unmedia: Using the Process of
Journalism To Protect The Journalist's Privilege In an Infinite
Universe of Publication, 39 HOUS. L. REV. 1371 (Spring 2003); Anthony
L. Fargo, The Journalist's Privilege For Nonconfidential Information
in States Without Shield Laws, 7 COMM. L. & POL'Y 241 (2002); Karl H.
Schmid, Journalist's Privilege in Criminal Proceedings: An Analysis
of United States Courts of Appeals' Decisions From 1973 to 1999, 39
AM. CRIM. L. REV. 1441 (Fall, 2002); Jane E. Kirtley, Keeping The
Government Out of the Newsroom, 28 FALL HUM. RTS. 7 (Fall 2001);
Anthony Fargo, Reconsidering The Federal Journalist's Privilege For
Non-Confidential Information: Gonzalez v. NBC, 19 CARDOZO ARTS &
ENT. L. J. 355 (2001); Theodore J. Boutrous and Seth M. M. Stodder,
Retooling The Federal Common-Law Reporter's Privilege, 17 SPG-COMM.
LAW. 1 (Spring 1999); Adam Liptak, The Hidden Federal Shield Law: On
The Justice Department's Regulation Governing Subpoenas To The Press,
1999 ANN. SURV. AM. L. 227 (1999); Jane Kirtley, The Vanishing
Reporter's Privilege: What's Gone, What's Left, 522 PLI/PAT 357
(June-July 1998); R. L. Spellman, Federal Common Law of Journalistic
Privilege: Fairness In The Clash of Competing Interests, 7 COMM. &
THE LAW, 95 (Sept. 1995); Marcus Asner, Starting From Scratch: The
First Amendment Reporter-Source Privilege And The Doctrine of
Incidental Restrictions, 26 U. MICH. J. L. REFORM 593 (Spring 1993);
Paul H. Gates, Jr., Making the Press Talk After Miami Herald
Publishing Co. v. Morejon: How Much of A Threat to the First
Amendment?, 17 NOVA L. REV. 497 (Fall 1992); Leslye DeRoos Rood and
Ann K. Grossman, The Case For A Federal Journalist's Testimonial
Shield Statute, 18 HASTINGS CONST. L. Q. 779 (Summer 1991); Sharon K
Malheiro, The Journalist's Reportorial Privilege -- What Does It
Protect And What Are Its Limits?, 38 DRAKE L. REV. 79 (1988/1989);
Monica Langley and Lee Levine, Branzburg Revisited: Confidential
Sources and First Amendment Values, 57 GEO. WASH. L. REV. 13 (Nov.
1988); Glenn A. Browne, Just Between You and Me…For Now: Reexamining
A Qualified Privilege For Reporters To Keep Sources Confidential in
Grand Jury Proceedings, 1988 U. ILL. L. REV. 739 (1988); Carl C.
Monk, Evidentiary Privilege For Journalists' Sources: Theory And
Statutory Protection, 51 MO. L. REV. 1 (Winter 1986); D. M. Gillmor,
Journalist's Privilege and the Constitution, 2 J. MEDIA L. & PRACT.
115 (Sept. 1981); see generally M. VAN GERPEN, PRIVILEGED
COMMUNICATION AND THE LAW (1979).
[10] E.g., Vincent Blasi, The Newsman's Privilege: An Empirical
Study, 70 MICH. L. REV. 229 (1971); see also Vincent Blasi, Press
Subpoenas: An Empirical and Legal Analysis, Study Report of the
Reporters, Committee For Freedom of The Press (1970).
[11] Branzburg, 408 U.S. at 693-696, n. 32 & 33.
[12] E.g., Laurence B. Alexander and Leah G. Cooper, Words That
Shield: A Textual Analysis of The Journalist's Privilege, 18
NEWSPAPER RES. J. 51 (Winter/Spring 1997); Laurence B. Alexander,
Linda M. Perry, and Bill F. Chamberlin, Branzburg v. Hayes revisited:
A Survey of Journalists Who Become Subpoena Targets, 15 NEWSPAPER
RES. J. 83 (Spring 1994); S. L. Alexander, CBS News and Subpoenas
Duces Tecum, 1971-1987, 10 COMM. & THE LAW 3 (Aug. 1988); A. Mehra,
Newsman's Privilege: An Empirical Study, 59 JOURNALISM Q'LY 560
(Winter 1982); E. M. Wirth, Impact of State Shield Laws on
Investigative Reporting, 16 NEWSPAPER RES. J. 64 (Summer 1995).
[13] E.g., Paul Marcus, The Reporter's Privilege: An Analysis of The
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25
ARIZ. L. REV. 815 (1984); Newsmen's Privilege To Withhold Information
From Grand Jury, 86 HARV. L. REV. 137 (1972).
[14] See LAURENCE H. TRIBE, AMERICA CONSTITUTIONAL LAW, 12-22, PP.
971- 77 (1988); see also David J. Onorato, A Press Privilege For The
Worse of Times, 75 GEO. L. J. 361 (Oct. 1986); Brian M. Cullen,
Circumventing Branzburg: Absolute Protection For Confidential News
Sources, 18 SUFFOLK U. L. REV. 615 (Winter 1984); Paul Marcus, supra
note 91. In terms of lower court decisions, see, e.g., In re Malden,
151 F.3d 125, 128-29 (3d Cir. 1998); United States v. Smith, 135 F.3d
963, 971 (5th Cir. 1998); Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir.
1993); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992);U.S. v.
LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988); von Bulow
v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987); U.S. v. Caporale,
806 F.2d 1487, 1504 (11th Cir. 1986); U.S. v. Cuthbertson, 630 F.2d
139, 146 (3d Cir. 1980).
[15] 408 U.S. 665 (1972).
[16] In addition to the recitation of the underlying facts in the
Supreme Court's decision, 408 U.S. at 667-671, the two state court
opinions are useful and illuminating. Branzburg v. Pound, 461 S.W.
2d 345 (1971)(as modified on denial of rehearing); Branzburg v.
Meigs, 503 S.W.2d 748 (1971).
[17] Branzburg v. Pound, 461 S.W.2d at 345-46.
[18] Id.
[19] Id.
[20] KY. REV. STAT. ANN. Sec. 421.100 (1970), quoted in Branzburg v.
Pound, 461 S.W.2d at 346.
[21] Branzburg v. Pound, 461 S.W.2d at 347-48.
[22] Branzburg v. Meigs, 503 S.W.2d at 749.
[23] Id. at 750-51.
[24] Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970).
[25] Branzburg v. Meigs, 503 S.W.2d at 750-51.
[26] The facts of the Pappas case are set forth in the state court
and U.S. Supreme Court decisions. See In The Matter of Paul Pappas,
266 N.E.2d 297, 298-300 (1971); Branzburg v. Hayes, 408 U.S. at 672-75.
[27] Pappas, 266 N.E.2d at 299.
[28] Id. at 304.
[29] Id. at 299.
[30] Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970).
[31] Id. at 1084, n. 2.
[32] Branzburg v. Hayes, 408 U.S. at 676-77.
[33] Id. 677-79.
[34] See Caldwell v. United States, 43 F.2d at 1086.
[35] Id.
[36] Id. at 1088-1090.
[37] Id.
[38] Branzburg v. Hayes, 408 U.S. at 708.
[39] Id. at 667-708(White, J., majority opinion).
[40] Id. at 709 (Powell, J., concurring).
[41] Id. at 725 (Stewart, J., dissenting).
[42] Id. at 711 (Douglas, J., dissenting)(with particular reference
to United States v. Caldwell)..
[43] Id. at 681.
[44] Id. at 700-01.
[45] For an excellent analysis of the issues courts face in defining
who is a journalist in the context of any privilege, see Clay
Calvert, Any You Call Yourself A Journalist?: Wrestling With A
Definition of "Journalist" in the Law, 103 DICK. L. REV. 411 (Winter 1999).
[46] Id. at 682-83.
[47] Id. at 683. For an excellent analysis of the Court's general
laws doctrine in a variety of other contexts, see Sig Splichal and
Matthew D. Bunker, Formalism, First Amendment Expression, and General
Law Doctrine, 44 JOURNAL OF COMMUNICATION 136 (Spring 1994).
[48] Branzburg v. Hayes, 408 U.S. at 686-89.
[49] Id. at 702.
[50] Id. at 704-05, n. 40.
[51] Id. at 705-06.
[52] Id. at 706.
[53] Id. at 707-08.
[54] Id. at 709-710.
[55] Id. at 692.
[56] Id. at 693.
[57] Id. at 693-95.
[58] Id. at 697.
[59] Id. at 699.
[60] 339 F.3d 530 (7th Cir. 2003).
[61] 408 U.S. 665 (1972).
[62] Id.
[63] Id. at 533-34.
[64] Id. at 531.
[65] Id.
[66] Id. at 532.
[67] Id.
[68] Id.
[69] Id. at 533.
[70] Id.
[71] Id.
[72] Id. at 532.
[73] See Hobley v. Chicago Police Commander, 223 F.R.D. 499 (N.D.
Ill. 2004); United States v. Hale, 2004 WL 1123796 (N.D. Ill. 2004);
Solaia Technology, LLC v. Rockwell Automation, Inc., 2003 WL 22597611
(N.D. Ill. 2003).
[74] Wen Ho Lee v. United States Department of Justice, et al., 287
F.Supp.2d at 17 (D.D.C. 2003).
[75] Id. at 18-19.
[76] Id. at 24.
[77] In Re Special Proceedings, 291 F.Supp.2d 44, 5157 (D.R.I. 2003).
[78] In Re Special Proceedings, 373 F.3d 37, 44-45 (1st Cir. 2004).
[79] In Re Special Proceedings, 291 F.Supp.2d at 55.
[80] Id. at 57-60.
[81] Id. at 59.
[82] In Re Special Proceedings, 373 F.3d at 45 (referring to Judge Posner).
[83] Id.
[84] See In re: Special Counsel Investigation, 346 F.Supp.2d 54
(D.D.C. 2004); In re: Special Counsel Investigation, 338 F.Supp.2d 16
(D.D.C. 2004); see generally In re Special Counsel Investigation, 332
F.Supp.2d 26 (D.D.C. 2004).
[85] In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C.Cir. 2005).
[86] Federal Rules of Evidence Rule 501, 28 U.S.C. A. 501 (2004), provides:
Except as otherwise required by the Constitution of the United States
or provided by Act of Congress or in rules prescribed by the Supreme
Court pursuant to statutory authority, the privilege of a witness,
person, government, State, or political subdivision thereof shall be
governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason
and experience. However, in civil actions and proceedings, with
respect to an element of a claim or defense as to which State law
supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be
determined in accordance with State law.
[87] 397 F.3d at 976-80 (Sentelle, J., concurring).
[88] 397 F.3d at 981-85 (Henderson, J., concurring).
[89] 397 F.3d at 986-1004 (Tatel, J., concurring).
[90] 2005 WL 427911 (S.D.N.Y., Feb. 24, 2005).
[91] Branzburg v. Hayes, 408 U.S. 665, 667-708 (1972)(White, J.,
majority opinion).
[92] Id. at 709 (Powell, J., concurring).
[93] At least thirty-one states and the District of Columbia have
passed some form of a shield law providing a degree of protection to
reporters. See, e.g., Fla. Stat. Ch. 90.5015 (2004)(Florida shield
law); Ind. Code Ann. § 34-46-4-1 (2005)(Indiana shield law); N.C.
Gen. Stat. § 8-53.11 (2005); see also The Reporters Privilege
Compendium: An Introduction, Reporters Committee for Freedom of the
Press, available at
http://www.rcfp.org/cpi-local/privilege/item.cgi?i=intro (Mar. 30,
2005); Laurence Alexander & Leah Cooper, Words That Shield: A
Textual Analysis of the Journalist's Privilege, 18 Newsp. Res. J. 51
(Winter/Spring 1997). In addition, some state courts have relied on
that state's constitution, rules of procedure or common law to
protect reporters. See, e.g., O'Neill v. Oakgrove Construction Inc.,
71 N.Y.S.2d 521 (1988); Senear v. Daily Journal-American, 97 Wash.2d
148, 641 P.2d 1180 (1982), on remand, 8 Media L. Rep. 2489 (Wash.
Super. Ct. 1982); Ammerman v. Hubbard Broadcasting, 3 Media L. Rep.
1616 (N.M. Ct. App. 1977).
[94] Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
[95] See.e.g., Press-Enterprise Co. v. Riverside County Superior
Court, 478 U.S. 1 (1986); Press-Enterprise Co. v. Riverside County
Superior Court, 464 U.S. 501 (1984); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596 (1982); Richmond Newspapers v. Virginia, 448 U.S.
555 (1980)
[96] See Justice Potter Stewart, Or Of The Press, 26 Hastings L. J.
631 (1975); see also Houchins v. KQED, 438 U.S. 1, 19 (1978)(Stewart,
J., concurring).
[97] See,e.g., In re: Grand Jury Subpoena, Judith Miller, 397 F.3d
at 976-80 (Sentelle, J., concurring).
[98] 339 F.3d 530 (7th Cir. 2003).
[99] One additional reporter-source controversy that is still
pending, though it has yet to result in an appellate opinion, is the
Steven Hatfill anthrax letter case. Unknown government sources in
2002 leaked to the press Hatfill's name as a "person of interest" in
that investigation, though Hatfill was not and still has not been
charged with a crime. Hatfill subsequently sued the government and
sought the names of the sources. This case will be interesting to
monitor because the trial judge has allowed the plaintiff to proceed
by obtaining waivers of confidentiality from government personnel who
might have access to the information leaked to the press, but he has
expressed concern over the breadth of any questions that might be put
to the press. Media organizations are currently contesting several
subpoenas. See, Curt Anderson, Associated Press, Justice Dept. Denies
Casting Suspicion on Germ Researcher, BOSTON GLOBE, Dec. 13, 2002, at
A51; Diana Jean Schemo, Weapons Expert Attacks F.B.I. and Ashcroft on
Anthrax Inquiry, NEW YORK TIMES, Aug. 25, 2002, at A11; Carol
Leonnig, Anthrax Probe Leaks Assailed; Judge Scolds U.S. In
Scientist's Case, WASHINGTON POST, Oct. 8, 2004, at B1; Carol Leonnig
and Marilyn Thompson, Hatfill Sues Over Anthrax Probe; Scientist
Accuses Ashcroft, FBI of `Smear Campaign' WASHINGTON POST, Aug. 27,
2003, at B1; Toni Locy, Attorney Protests Anthrax Case Leaks, USA
TODAY, Aug. 15, 2002, at 2A; Jerry Markon, Former Army Scientist Sues
New York Times, Columnist, WASINGTON POST, July 14, 2004, at A7;
Judith Miller, Scientist Files Suit Over Anthrax Inquiry, NEW YORK
TIMES, Aug. 27, 2003, at A13; see also Special Report: Reporters
Committee For Freedom of the Press, Reporters and Federal Subpoenas,
available at http://www.rcfp.org/shields_and_subpoenas.html#hatfill
(March 25, 2005).
[100] See, e.g., In Re Special Proceedings, 373 F.3d 37 (1st Cir. 2004).
[101] The New York Times Co. v. Gonzalez, 2005 WL 427911 (S.D.N.Y.,
Feb. 24, 2005).
[102] 408 U.S. 665 (1972).
[103] Federal Rules of Evidence Rule 501, 28 U.S.C. A. 501 (2004).
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