This paper was presented at the Association for Education in Journalism and
Mass Communication in San Francisco August 2006.
I am not the author. If you have questions about this paper,
please contact the author directly.
If you have questions about the archives, email rakyat [ at ]
eparker.org. For an explanation of the subject line, send email to
[log in to unmask] with just the four words, "get help info aejmc," in the
body (drop the "").
(Oct 2006)
Thank you.
Elliott Parker
====================================================================
Invoking Privilege Since Branzburg:
Are Bloggers Like Other Non-Traditional Journalists?
Jason M. Shepard
Graduate Student, M.A. Candidate
University of Wisconsin-Madison
413 W. Wilson St. #D
Madison WI 53703
608-251-1408
[log in to unmask]
ABSTRACT
In the 33 years since the U.S. Supreme Court rejected a First
Amendment-based reporter's privilege, most federal and state courts
have nonetheless carved out a privilege under certain circumstances.
An analysis of cases in which non-traditional journalists have sought
the privilege provides significant guidance in determining whether
bloggers can invoke the privilege. The cases show how established
legal tests have protected those whose work is similar to journalism
while denying the privilege to those on the periphery of newsgathering.
The jailing of New York Times' reporter Judith Miller, after
she exhausted all legal options to keep secret the identity of a news
source, is among the most significant showdowns between government
and the press in a generation. While Miller sat in a Virginia jail
cell for what she called civil disobedience for the principle of the
First Amendment's right to a reporter's privilege, it is likely that
19-year-old Nicholas Ciarelli was watching with interest.
Ciarelli is facing a legal battle of his own over a reporter's
privilege without the institutional support of the New York Times. In
January 2005, the computer giant Apple Computer, Inc., filed a
lawsuit against Ciarelli for stories he published on his Web site,
thinksecret.com.1 At the time, Ciarelli was a Harvard freshman
operating the Web site in his spare time under the pseudonym Nick
DePlume. In addition to seeking an injunction preventing Ciarelli
from publishing trade secrets, Apple subpoenaed Ciarelli to provide
the identities of sources who gave him confidential information about
upcoming Apple products. In a separate lawsuit brought by Apple, a
federal district judge declined to apply California's privilege
statute to three bloggers who received confidential information about
Apple products,2 and the case is now under appeal. Whether the four
bloggers are journalists under the law is central to the court cases,
and the bloggers have drawn national attention to the problem of
differing legal standards for bloggers who practice journalism.
"Apple's lawsuit is an affront to the First Amendment, and an
attempt to use Apple's economic power to intimidate small
journalists," Ciarelli's lawyers argued in court papers. "If a
publication such as the New York Times had published such
information, it would be called good journalism; Apple never would
have considered a lawsuit."3
In the 33 years since a divided U.S. Supreme Court declared the
First Amendment did not embrace an absolute reporter's privilege,
various levels of legal protection have emerged through a myriad of
state statutes and state and federal common-law protections. As
several high-profile cases show, privilege cases have created
unstable and sometimes unpredictable legal doctrines. Among the many
problems with reporter's privilege laws is the question of who can
invoke them. There was no question of Judith Miller's standing as a
journalist. Her training, professional experience and employment by a
mainstream news organization all contributed to Miller's ability to
pass any sort of "status test" as a journalist. And at the heart of
the inquiry were Miller's conversations with a source in the context
of her reporting on national-security issues. This would clearly pass
any sort "function test" to determine whether one is a journalist
based on a person's work habits, processes and purposes. Ciarelli's
case may not be as clear, although he does have a record of
irritating Apple with his accurate Web postings and has a regular
audience visiting his site for Apple-related news. Indeed, his blog
postings, averaging 13 a month, drew an average of 2.5 million page
views a month in 2005.4
The ability of anyone to publish information on the Internet
will likely once again force courts to confront the problem of who
can invoke the privilege. Floyd Abrams, the noted First Amendment
attorney who represented Judith Miller and who has argued several
landmark First Amendment cases before the U.S. Supreme Court,
acknowledges that bloggers present a "potentially dangerous aspect"
to the future of reporter's privilege laws. "If everybody's entitled
to the privilege, nobody will get it," Abrams told The New York Sun.
"I don't think one can sustain the position that everyone who has a
Web site that they may put comments about their former girlfriends on
is therefore a journalist." But, Abrams notes, the medium of
communication isn't determinative of what protections one can
receive. "I think a blogger who communicates with and tries to
communicate with thousands of people is not less deserving than a
journalist who may communicate with a smaller audience through a
small-town newspaper." 5
So do bloggers present an unprecedented challenge to courts
when defining journalism and the press? Not necessarily. While the
Internet presents fact patterns that challenge many legal doctrines,
many questions can be resolved by looking at past cases that have
created existing legal tests, standards and rationales. A starting
point for analyzing whether bloggers should qualify for a reporter's
privilege would be in the Supreme Court's broad interpretation of the
"press" in the First Amendment. While clearly singling out "the
press" as deserving of special legal protections, the First Amendment
has been interpreted to protect the "lone pamphleteer" as much as the
"large metropolitan publisher."6 Legal historians have long debated
whether the press clause grants special rights to journalists as a
class of people, or whether the press clause is simply an extension
of freedom of speech, guaranteed to all citizens.7 This tension is
among the reasons why some legal analysts8 – and justices on the U.S.
Supreme Court9 – have opposed a reporter's privilege. If the
privilege is based on the philosophical underpinnings of the
institutional press, it is necessary to define the press. The
Internet makes such definitions even harder to craft. Some argue that
blogs, by providing a vehicle through which anyone can claim to be a
journalist and thus seek protection with a reporter's privilege, may
endanger the privilege for all journalists.
It doesn't have to be. Part of the solution to this new legal
problem lies in analyzing case law dealing with similar challenges by
other non-traditional journalists. The problem of bloggers invoking a
privilege may actually be an easy legal answer if one compares
bloggers to dozens of other people who have invoked the reporter's
privilege over the past three decades. Courts have been asked to
extend the privilege to freelance writers,10 professors and academic
researchers,11 book authors,12 student newspaper reporters,13 a
professional wrestling commentator,14 employees of specialized trade
publications,15 political advocacy groups,16 a television news
helicopter pilot,17 a radio station owner,18 a public relations
firm,19 and a film producer.20 Some of these cases have set important
precedents in federal appellate circuits and state courts. In
Wisconsin, for example, the constitutional and common-law privilege
is based on two cases involving underground newspapers working for
scurrilous publications.21 In many of these cases, courts have turned
to the philosophical rationale for a reporter's privilege, assessed
the rationale's relevance in the contemporary challenge, and applied
modified legal tests that have generally protected the type of
journalistic-like work the privilege was intended to protect.22 At
the same time, the tests have been applied to deny the privilege to
those on the periphery of journalistic work.23 An analysis of these
cases provides important insights into how courts can, and should,
apply the reporter's privilege to blogs.
Rationale for privilege
Journalists have long claimed a need to protect sources in
order to properly scrutinize government officials.24 Sometimes, the
only way for journalists to obtain important information is to
promise the source confidentiality. Journalists argue that without
this ability to make and keep confidential promises, important news
and information may never come to light. When journalists are called
upon by the legal system to reveal sources of information and break
promises of confidentiality, they may be seen as agents of government
rather than independent watchdogs. Journalists have argued their
confidential sources may dry up if they do not have a legal right to
protect them.25 Journalists argue that without the ability to protect
confidential sources, the ultimate loser is the public, who will
receive less information about government affairs.
The first recorded court case of a journalist invoking a reporter's
privilege was the refusal in 1848 of John Nugent of the New York
Herald to reveal to Congress who had given him a copy of a secret
draft treaty with Mexico.26 The first privilege case invoking the
First Amendment to reach a federal appeals court had less to do with
government affairs. In 1957, Judy Garland sued Marie Torre, a
columnist for the New York Herald Tribune, demanding to know the
identity of a CBS executive who claimed that Garland's reticence to
do a series of television specials was because "she thinks she's
fat."27 The Second Circuit Court of Appeals agreed with the premise
that "compulsory disclosure of a journalist's confidential sources of
information entail an abridgment of press freedom by imposing some
limitation upon the availability of news."28 But the court went on to
note the First Amendment is not absolute, and succinctly summarized
the competing societal interests. "Freedom of the press, hard-won
over the centuries by men of courage, is basic to a free society. But
basic too are courts of justice, armed with the power to discover
truth. The concept that it is the duty of a witness to testify in a
court of law has roots fully as deep in our history as does the
guarantee of the press."29 The court ruled in favor of Garland. The
case is still cited today because of its early recognition of a
balancing of public interests: the public's right to freedom of the
press against the public's right to everyman's evidence in the legal system.
As several cases were gaining national status in the early 1970s,30
scholars and professionals honed their arguments in favor of a
privilege by drawing upon First Amendment theories of the press and
the press's role as a watchdog. The "checking value" theory of the
press, exemplified by Vincent Blasi, now a professor at Columbia
University, is based on the historical tension between the press and
government.31 Government wields enormous power over citizens with its
sanctioned right to use force against its citizens, its ability to
monitor people's activities, and its widespread bureaucracy that
makes misconduct easy to hide. Because power often breeds corruption,
it is a particular duty of the press to "check" the power of
government. To do this, the press needs independence.32 This checking
value concept is embedded in First Amendment cases of the U.S.
Supreme Court. As it noted in the Pentagon Papers case, "The press
was protected so that it could bare the secrets of government and
inform the people."33
A second First Amendment theory used to advance a reporter's
privilege is found in the work of Alexander Meiklejohn, who argued
the First Amendment was meant to advance the self-governance of
citizens by requiring unfettered discussion about political and
public affairs with the intention of increasing citizen participation
in government.34
Journalists have often compared their privilege to other
legally-recognized privileges: attorney-client, doctor-patient and
husband-wife. While grand juries, prosecutors and lawyers seeking
discovery are to be afforded wide-ranging powers in their search of
truth, courts have recognized that such pursuits do have some limits
when balanced with other interests. The societal benefit of an
unfettered press is one of those other interests. Today, most state
courts and federal circuits offer some form of a reporter's privilege
based on these rationales.35
The mixed signals of Branzburg
In 1972, the U.S. Supreme Court consolidated four appeals court
cases involving three different reporters that reached different
conclusions as to whether journalists could invoke a reporter's
privilege to withhold information from grand juries.36 All three
journalists had been subpoenaed to testify before grand juries about
their observations of potential criminal activity. Judges in three of
the cases ordered the journalists to testify, while in the fourth
case the Ninth Circuit Court of Appeals found that the First
Amendment interests outweighed the reporter's compelled testimony.37
Before the U.S. Supreme Court, the journalists argued the
First Amendment granted them a reporter's privilege because without
one, reporters would be unable to properly do their jobs of providing
the public with unfettered information. The court ruled 5-4 that the
First Amendment did not provide a privilege for journalists to avoid
testimony in grand jury proceedings.38 One of the five in the
majority, Justice Powell, wrote a concurring opinion that emphasized
what he called the limited holding of the case, and said that
"newsmen" aren't without constitutional protection for
newsgathering.39 Over the years, many courts have interpreted
Powell's concurrence to provide a qualified reporter's privilege in
non-grand jury cases that requires a balancing of interests.40 Two
blistering dissents by Justices Douglas and Stewart said the
majority's decision threatened to undermine the independence of the
press. Justice Stewart's articulation of a three-prong test that must
be overcome in order to subpoena journalists has been adopted by
several lower courts.41
The majority's decision was prescient to the issues that bloggers
would raise more than 30 years later. In rejecting the privilege, the
majority said the First Amendment generally does not guarantee the
press "special rights" in part because "the press" comprises a broad
spectrum of communication. A reporter's privilege would inevitably
give rise to "practical and conceptual difficulties of the highest
order" because "sooner or later, it would be necessary to define
those categories of newsmen who qualified for the privilege."42 That
definitional evaluation would a constitutionally-questionable
procedure, the court noted, because of the expansive interpretation
of the "press" in First Amendment doctrines. The court in 1938 had
ruled that "freedom of the press" was a "fundamental personal right"
that was granted to "every sort of publication which affords a
vehicle of information and opinion."43
If a Supreme Court decision is supposed to provide finality and
clear legal standards to be adopted in the future, the Branzburg case
could be characterized as a failure. Since 1972, hundreds of court
decisions have used Powell's concurrence to support a qualified
reporter's privilege.44
Current status of the privilege
Regardless of the difficulties in determining who's a
journalist, the right to invoke a reporter's privilege isn't the same
everywhere or for every type of case, or for every type of
information. Most courts have adopted a qualified privilege, rather
than an absolute privilege, that requires a balancing of the public's
interest in "everyman's evidence" in court proceedings against the
public's interest in an unfettered press.45 Some courts require those
subpoenaing a journalist to meet several threshold burdens, including
whether all other means of obtaining the information have been
exhausted and that the information sought goes to the heart of the
legal dispute.46 If those burdens are met, journalists are less
likely to be successful in winning a motion to quash a subpoena. Some
jurisdictions have different standards for confidential and
non-confidential information.47 Courts have generally been less
willing to give a broad privilege in criminal proceedings and have
the most difficulty in the context of grand juries. Journalists have
often fared better in civil cases, although there are still different
thresholds when journalists are a party in the actions, such as libel
cases, as opposed to non-party actions where journalists may simply
have relevant information to case in which they are not involved.48
Sporadically, reporter's privilege cases garner national
attention. The jailing of Vanessa Leggett in 2001 is one recent
example. Leggett was a freelance writer attempting to write a book
about the death of Doris Angleton, whose husband was tried and
acquitted in state court for murder. She spent 168 days in jail for
failing to reveal a source to a federal grand jury investigating the
death after the state trial acquittal, and the FBI used questionable
tactics to elicit Leggett's support.49 The Fifth Circuit Court of
Appeals rejected her appeal, determining that no person has a right
to evade a grand jury subpoena.50 The court made no determination of
whether Leggett, as an English teacher and freelance writer hoping to
write a book, was a journalist under the law.51 In 2004, Rhode Island
television reporter Jim Taricani was sentenced to six months home
confinement for refusing to divulge who provided him with a videotape
showing an aide to Providence's mayor accepting a bribe.52
But in 2005, the issue of a reporter's privilege became one of
the most important media legal topics since the Branzburg era. The
cases of reporters covering the Valerie Plame and Wen Ho Lee stories
are excellent examples of the instability in reporter's privilege
laws in both criminal and civil cases. After unsuccessfully arguing
at the district and appellate court the right to withhold testimony
from a federal grand jury, and after the Supreme Court declined to
review the case, Miller decided to go to jail rather than reveal
details of a conversation she had regarding former the leak of a CIA
agent's name, a potentially criminal piece of information. The D.C.
Court of Appeals that ordered testimony from Miller and other
journalists in the case said in no uncertain terms that the First
Amendment affords no privilege for journalists in the context of
grand jury proceedings.53 In rejecting the privilege, Judge David B.
Sentelle emphasized the problems – both practical and philosophical –
with a reporter's privilege in general, and cited blogs as yet
another problem.
"Are we then to create a privilege that protects only those
reporters employed by Time Magazine, the New York Times, and other
media giants, or do we extend that protection as well to the owner of
a desktop printer producing a weekly newsletter to inform his
neighbors, lodge brothers, co-religionists, or co-conspirators? …
(D)oes the privilege also protect the proprietor of a web log: the
stereotypical 'blogger' sitting in his pajamas at his personal
computer posting on the World Wide Web his best product to inform
whoever happens to browse his way? If not, why not? How could one
draw a distinction consistent with the court's vision of a broadly
granted personal right? If so, then would it not be possible for a
government official wishing to engage in the sort of unlawful leaking
under investigation in the present controversy to call a trusted
friend or a political ally, advise him to set up a web log (which I
understand takes about three minutes) and then leak to him under a
promise of confidentiality the information which the law forbids the
official to disclose?"54
Miller, however, declared a responsibility to commit civil
disobedience in the name of the First Amendment, and spent nearly
three months in jail until she agreed to testify. Her decision came,
she claimed, only after her source gave her a personal waiver.55
Miller's case is unusual in several respects, including that giving
the information to journalists may itself have been a crime. It may
be that no law or proposal short of an absolute privilege would have
afforded Miller the right not to testify. The case of Wen Ho Lee,
however, presents wholly different facts with the same result: judges
declaring reporters must testify.
Wen Ho Lee was fired in 1999 as a nuclear scientist at Los
Alamos National Laboratory and later arrested, denied bail, and spent
nine months in solitary confinement before the government dropped the
case after Lee pleaded guilty to one count of mishandling nuclear
secrets and sentenced to time served. The federal judge in the case
singled out several high-ranking government officials for misleading
the judge and for Lee's harsh treatment in jail, saying the actions
of government officials "have embarrassed our entire nation."56
After his release, Lee sued the U.S. Department of Energy, the
Department of Justice, and the FBI for violating the 1974 Privacy
Act, accusing government officials of purposely leaking private
information about Lee to the media. As part of discovery, Lee
subpoenaed five journalists who were thought to have been recipients
of the leaks.57 A district court found the journalists in contempt
after they refused to reveal the identities of their sources, and a
three-judge panel on the D.C. Circuit Court of Appeals upheld the
decision in June 2005.58 The three-judge panel ruled that the
information Lee was seeking was "central to the case" and Lee had
"exhausted all reasonable alternatives" to obtain the information.59
In a decidedly dismissive tone, the court noted that both the
"breadth of this claimed privilege" and "its very existence has long
been the subject of substantial controversy."60 In November, the
full circuit declined to rehear the case on a 4-4 vote. Absent an
appeal to the U.S. Supreme Court, the journalists face a $500-a-day
fine, and potential jail time, until they testify.61
Given the instability and uncertainties with reporter's
privilege laws, the Apple cases push some of these complexities even
further by raising unique questions: How far should the privilege
extend, especially in the cases where reporters may have information
about illegal activity, as with Apple's trade-secret allegations?
What hurdles must be overcome to obtain the information under a
qualified privilege? Should the legal hurdles be higher for discovery
subpoenas in civil lawsuits, as opposed to subpoenas in criminal
proceedings? Where do trade secrets fall in the balancing tests of
competing values? And given new technologies, to what extent can
reporters intervene when their Internet service providers are
subpoenaed for electronic records?
And with journalists losing privilege cases left and right,
why does it matter who can invoke the privilege? For news
organizations, reporter's privilege laws are important because of the
high frequency of subpoenas served on journalists. While no single
organization tracks the number of subpoenas issued to journalists,
several studies suggest subpoenas are a regular occurrence. One study
of Florida news organizations found that between 1988 and 1992, 106
news organizations reported receiving 726 subpoenas.62 A survey by
the Reporters Committee for Freedom of the Press found that 823
subpoenas were issued in 2001 to 319 news organizations that
responded to a 20-question survey.63 Three out of four that were
challenged in court were successfully quashed by journalists.
Criminal trials accounted for 353 subpoenas, while civil trials
accounted for 222 subpoenas. Other types of proceedings included
criminal investigations (116), civil depositions (73), and grand jury
proceedings (16). The majority of the subpoenas occurred in state
courts. Only 9 percent were issued in federal courts.64 Given the
frequency of subpoenas to journalists, it's likely that the issues
raised by the Apple cases will not long remain legal anomalies. The
next section turns to the case law in which judges have been
confronted with similar challenges: Who is a journalist under the law?
Federal case law
Since Branzburg, the First, Second, Third, Ninth and Tenth
Circuit Courts of Appeal have ruled on the question of who qualifies
to invoke a reporter's privilege.65 In all five, the courts based the
privilege on the text of the Supreme Court's Branzburg decision and
then set out to answer the difficult question of who qualifies to
invoke the privilege. Before we turn to those precedent-setting
cases, it's important to note several disparate district court cases
dealing with the same questions. District court judges have allowed
the privilege to be invoked by a chief executive of a medical
journal,66 a Ph.D. student,67 a credit-rating reporting company,68 a
financial analyst,69 a student journalist,70 a political advocacy
group,71 and a financial newsletter.72 These courts have used various
standards to decide whether to allow someone to grant the privilege.
In 1984, a federal judge in New York ruled that a Ph.D. student did
not have to turn over a journal in which he kept notes for his
dissertation while observing a restaurant to whose employees he
promised confidentiality.73 A federal grand jury investigating a fire
at the restaurant subpoenaed the student's journal even though he
testified about what he saw. The judge used Powell's Branzburg
concurring opinion to justify his balancing of the grand jury's
interests and the interests in journalistic confidentiality. Calling
the "intrusion" by the grand jury into the student's journal
"substantial," the judge concluded that the same public policy
justifications for a reporter's privilege support a similar qualified
privilege for scholars. "Compelled production of a researcher's notes
may inhibit prospective and actual sources of information, thereby
obstructing the flow of information to the researcher, and through
him or her, to the public."74 The court discussed the work habits of
scholars and the importance of academic freedom to make judgments
about areas of expertise for those seeking information. The judge
concluded that "serious scholars are entitled to no less protection
than journalists," and concluded there was "no showing of any
substantial government need" for the journal. 75
Using a different rationale, a federal judge in Pennsylvania in 1992
determined that a credit-reporting agency was entitled to invoke a
privilege because its publications had "all the attributes" that the
Supreme Court has said is "indicative of the press": a regular
circulation to a general population, a history of making its own
editorial analysis; and an independence over form and content.76 The
subpoena against the agency came in the context of a class action
suit alleging securities fraud against a paper manufacturing company,
and the plaintiffs were seeking information that company executives
provided about its finances to the outside credit-reporting agency.
The central question, the judge asked, was whether "a journalist's
privilege" extended to the credit-reporting agency. The judge noted
the lack of case law in the area of who qualifies for the privilege:
"Few cases provide any guidance about what it means to be a member of
the press for First Amendment purposes."77 But the judge said he
could make no content distinction between publishers of corporate
financial information and publishers of other types of news.
"Economic and scientific information, for example, has as great a
claim to First Amendment protection as does political discourse." 78
The judge favored the First Amendment interests at stake and found
that the plaintiffs had not met the threshold burden necessary for
compelled disclosure of information, seemingly combining Powell's
balancing test and Stewart's three-prong test in Branzburg into one
overriding legal standard.
Similarly, a federal judge in Massachusetts ruled in the same year
that a financial analyst can invoke the privilege to protect a
confidential source even if he is not a member of the organized press
because he was "engaged in the dissemination of investigative
information to the investing business community" on matters of public
concern.79 The analyst had written a report distributed to potential
investors that provided details about a questionable medical laser
system. The report was based in part on anonymous sources, and a
medical supply company that claimed to have suffered financial loses
because of the report had wanted the identity of the sources for a
civil lawsuit.80 The court ruled that the analysts' need for
confidential sources in order to do his job as an independent analyst
outweighed the company's need for the information.81
Two 1993 decisions by the district court judges in New York handled
differently who qualifies to invoke the privilege under competing
state and federal laws. One judge ruled that both federal and state
law excluded a financial newsletter from invoking the privilege. The
judge said the newsletter had limited distribution, a small
subscriber base of "far less" than 100 people, and no staff member
designated as a reporter, editor, or journalist. The newsletter had
the burden to prove its journalistic qualities and failed to do so,
the judge ruled.82 However, in a case involving a student journalist,
a different judge allowed a college student to invoke the privilege
under federal law even though the student would be prohibited under
the state law.83 A student journalist at the State University of New
York at Buffalo was subpoenaed to provide a tape recording of an
interview with an associate dean, who was being sued for perjury by a
former professor in a job dispute. The judge analyzed the student's
actions and concluded they were sufficiently similar to traditional
journalists to warrant the privilege.84
Two district courts have also found that political organizations and
advocacy groups can invoke the privilege because they gather and
disseminate information to the public. In Builders Association of
Greater Chicago v. County of Cook,85 a judge allowed the Chicago
Urban League to withhold details of a confidential survey under the
privilege because it was information gathered with the intent to
disseminate to public. The judge noted it would be content-based
discrimination to exclude the group simply because it was political
in purpose.86 A federal judge in Colorado used a different approach
to arrive at the same conclusion in Quigley v. Rosenthal,87 a case in
which the Anti-Defamation League was subpoenaed to reveal
confidential information in a defamation suit. Because the
organization "publishes numerous periodicals, books and pamphlets and
regularly engages in newsgathering activities," it qualifies as a
"newsperson" under the law and thus is able to invoke the privilege.88
While the district courts articulate some tests judges have used to
decide who qualifies to invoke the privilege, these are varied and
are rooted in differing interpretations of Branzburg. Federal
appellate courts that have dealt with the issue have set broader
precedents. While there is no single test used by the majority of
courts to determine who qualifies to invoke the privilege, the
earliest appellate case often cited is Silkwood v. Kerr-McGee.89 The
underlying facts of the case stem from a civil action filed by the
family of Karen Silkwood against the Kerr-McGee Corporation, alleging
that the company conspired against Silkwood to prevent her from
forming a labor union and filing complaints against the company under
the Atomic Energy and by contaminating her with radiation.90 As part
of the pre-trial discovery, Kerr-McGee subpoenaed Arthur Buzz Hirsch,
who had conducted an investigation into Silkwood's death with the
purpose of making a documentary film. He first learned of the
Silkwood case while he was a film student at UCLA, and his instructor
assisted him during the course of his research. All of Hirsch's were
told of his film-making purpose. After extensive hearings, a district
judge ruled against Hirsch and ordered him to both testify and turn
over documents requested by Kerr-McGee. In overruling the lower
court, the Tenth Circuit Court of Appeals concluded Hirch was
sufficiently like a journalist to be able to invoke the privilege.91
The court noted Hirsch's previous work experience as a freelance
reporter. Then, the court analyzed Hirsch's work habits in making the
film about Silkwood. He spent "considerable time and effort in
obtaining facts and information," and that he had planned "to make
use of this in preparation of the film."92 Citing the Supreme Court's
language in Lovell v. City of Griffin93 that defines "the press" as
"different kinds of publications which communicate to the public
information and opinion," the court determined that Hirsch should be
allowed to invoke the reporter's privilege even if he "is not a
salaried newspaper reporter."94 Once the court arrived at the
determination that Hirsch could invoke the privilege, it applied a
test articulated in Garland v. Torre,95 and put forth by Justice
Stewart in his Branzburg dissent, which requires that the party
seeking the information has attempted to obtain the information
elsewhere and has been unsuccessful; that the information goes to the
heart of the matter; that the information is of certain relevance;
and to account for the type of controversy.96 Because the district
court failed to conduct this analysis, the appeals court overturned
Hirsch's order.
While Hirsch had set out to produce an independent, factual
documentary prior to his interviews which were the focus on his
subpoena, Andrea Reynolds had no similar pre-determination of her
purposes when she kept notes and conducted investigations that she
later said were for a potential book. This absence of intent to
publicly disseminate information at the outset of the investigative
process was Reynolds' Achilles' Heel in the case of Von Bulow v. Von
Bulow,97 one of the seminal appeals court cases dealing with the
definition problems.
Like Hirsch, Reynolds was subpoenaed as a non-party witness in
a civil action. In this case, the children of Martha von Bulow filed
an action against her husband Claus von Bulow, the underlying
allegation being that Claus von Bulow had poisoned his wife, leaving
her in a permanent coma. Andrea Reynolds, whom the court described as
an "intimate friend" and "steady companion" of Claus von Bulow, was
ordered to turn over investigative reports she commissioned on the
lifestyles of the von Bulow children, notes she took during the
criminal trial of von Bulow, and a manuscript of a book she had
written about the von Bulow prosecution. She argued that these were
protected by a reporter's privilege.98
In rejecting Reynolds' claim, the Second Circuit Court of
Appeals ruled that the critical question in determining whether a
person falls into the class of those who can invoke a reporter's
privilege is "whether the person, at the inception of the
investigatory process, had the intent to disseminate to the public
the information obtained through the investigation."99 Additionally,
the person must be "involved in activities traditionally associated
with the gathering and dissemination of news."100 Courts must conduct
an intent-based factual inquiry into assertions of the privilege, and
cannot simply rule out non-traditional newsgatherers, but the burden
is on the person seeking the privilege.101 Reynolds failed to meet
these standards, the court ruled, because she admittedly sought the
information "for my own peace of mind" and that her primary
motivation in compiling her information was for the vindication of
Claus von Bulow.102
The basis of the court's determination that Reynolds was not engaged
in traditional newsgathering was the same rationale used by the First
Circuit Court of Appeals in the 1988 case In Re Jeffrey Steinberg.103
The court refused to allow campaign workers to invoke a reporter's
privilege to keep secret notebooks they created during the campaign,
ruling that they made no showing that the material was part of a
"journalistic endeavor."104 Both cases to differing degrees relied on
a content-analysis of the material. While the First Amendment
generally prohibits content-based distinctions, it is a theme that
runs through several privilege cases. The more like "journalism" the
material and processes are, the more likely a person is to be allowed
to invoke the privilege.
In 1993, the Ninth Circuit Court of Appeals ruled that an
investigative book author could invoke the privilege, drawing on an
analysis of the similarities between the work of book authors and
newspaper reporters. In Shoen v. Shoen,105 the court overturned a
district court decision, which was based on an intervening action by
a state appeals court that determined investigative book authors were
expressly excluded from Arizona's statutory shield law.106 In the
case, Ronald Watkins, an author of two previous investigative books,
was subpoenaed to testify in a civil case about his interviews for a
book he was working on about the conflicts among members of the Shoen
family who battled for control of the U-Haul company.107 The federal
appeals court ruled that the "journalist's privilege is designed to
protect investigative reporting, regardless of the medium used to
report the news to the public." The court mentioned the famous
investigative reporter Bob Woodward, noting that it would
"unthinkable" to say as a matter of law that Woodward would be
allowed to invoke the privilege in his capacity as a newspaper
reporter but not as a book author. "We see no principled basis for
denying the protection of the journalist's privilege to investigative
book authors while granting it to more traditional print and
broadcast journalists. What makes journalism journalism is not its
format but its content."108 The court also adopted the Second
Circuit's test in the von Bulow case requiring intent to disseminate
prior to the newsgathering process. Some book authors may not be
allowed to invoke the privilege if their intent is not the
dissemination of "news," and the court left open the question of
whether authors of history would be covered under its definition,
since a historian's intent is not the dissemination of "news."109
Five years later, the First Circuit Court of Appeals in Cusumano v.
Microsoft110 decided similarly in a case involving two professors
working on a book about the Internet browser wars between Microsoft
and Netscape. Microsoft subpoenaed the professors for details of
their research in the context of anti-trust case. The court found the
research process for the professors was indistinguishable from
traditional reporters. In concluding that "academics engaged in
pre-publication research should be accorded protection commensurate
to that which the law provides to journalists," the court discussed
the chilling effect that researchers could face with confidential or
sensitive sources.111 It too adopted the intention, newsgathering,
and public-dissemination standards in deciding to grant the
professors a right to invoke a reporter's privilege.112
While the standards adopted by several circuits over the years
provide wider latitude for non-traditional journalists, the case of
In re: Madden (Titan Sports v. Turner Broadcasting)113 provides some
guidance as to where courts may draw the line. Mark Madden, an
employee of the World Championship Wrestling, a professional
wrestling and entertainment company, recorded commentaries for a
900-number hotline in which he made allegedly false and misleading
statements about wrestlers from the World Wrestling Federation, a
competing organization. In a lawsuit between WWF and WCW, WWF
subpoenaed Madden to reveal the source of the information. Madden
invoked a journalist's privilege under Pennsylvania law and federal
common law. A federal district court ruled Madden was a "journalist"
because he intended to disseminate information to the public.114 But
the Third Circuit Court of Appeals overturned the lower court
decision, saying it did not correctly analyze the content of the
information being disseminated. The person claiming the privilege,
the appeals court said, "must be engaged in the process of
'investigative reporting' or 'news gathering.'"115
The court said its decision was rooted in the von Bulow and
Shoen cases. "This test does not grant status to any person with a
manuscript, a web page or a film, but requires an intent at the
inception of the newsgathering process to disseminate investigative
news to the public. As we see it, the privilege is only available to
persons whose purposes are those traditionally inherent to the press;
persons gathering news for publication."116 Madden, the court argued,
was simply passing along information from his employer with a
"primary goal" of "advertisement and entertainment – not to gather
news or disseminate information."117 Madden was more like a creator
of fictional works than a journalist, and thus had an intent at the
beginning to entertain, with the ability to fill factual gaps with
fictitious events, "a license a journalist does not have."118
Taken together, the federal cases provide clear guidance as to
determining who qualifies for the privilege, beginning with the tests
articulated in von Bulow and expanded in detail in Shoen and Madden.
The tests aim to protect those people traditionally associated with
journalism who set out at the beginning of a process to collect
information and then present it to the public, irregardless of
whether the person is employed full-time by a newspaper or a similar
"traditional" media company.
State Cases
Cases arising in state courts differ significantly from their
federal court counterparts because state statutes often concretely
define who qualifies for the privilege. Many of those states
specifically state the privilege can be invoked by the media, the
press, or a news
organization. Thirty-one states have statutory protections. Eighteen
other states have some constitutional or common-law protection. Only
Wyoming has no recognized protection.119
Some statutes give broad definitions of who qualifies. The District
of Columbia's shield law defines "news media" as "newspapers,
magazines, journals, press associations, news agencies, wire
services, radio, television, or any printed, photographic,
mechanical, or electronic means of disseminating news and information
to the public."120 Maryland's law lists eight types of media
protected, and adds as a ninth, "any printed, photographed,
mechanical, or electronic means of disseminating news and information
to the public."121 Nebraska's law, similar to New Jersey's law, is
afforded to those engaged in "gathering, receiving, or processing of
information for any medium of communication to the public," and
states "medium of communication shall include, but not be limited to,
any newspaper, magazine, other periodical, book, pamphlet, news
service, wire service, news or feature syndicate, broadcast station
or network, or cable television system."122 Oregon protects anyone
"connected with, employed by or engaged in any medium of communication."123
Other states have narrower or more specific laws. Georgia's law
covers only those whose material is disseminated "through a
newspaper, book, magazine, or radio or television broadcast."124
Illinois requires a newspaper or periodical, including electronic, to
have a general circulation and be published at regular intervals.125
Kentucky protects only those employed by or connected to a newspaper,
radio, or television station.126 Oklahoma's law protects only those
"regularly engaged" in gathering and preparing news "for any
newspaper, periodical, press association, newspaper syndicate, wire
service, radio or television station, or other news service."127
A review of case law from state courts shows non-traditional
journalists are sometimes treated differently than under federal law.
The privilege could not be invoked by an investigative book author,
an Arizona court of appeals court ruled in 1992 in Matera v. Superior
Court, because Arizona's statute, adopted in 1937, is "limited to
persons engaged in the gathering and dissemination of news to the
public on a regular basis."128 The law was intended only to apply to
those who gather news on an ongoing basis as "part of the organized,
traditional, mass media."129 The court observed that "the statute was
not designed to protect the information gathered, but rather was
designed to aid a specific class of persons – members of the media –
in performing their jobs free from the inconvenience of being used as
surrogate investigators."130
Sometimes, statutes are construed strictly to deny news gatherers
use of the privilege. In 1986, a district court in New York ruled
that student journalists working on the student newspaper at Hofstra
University could not invoke the privilege because the New York Shield
Law is "limited to protecting the class of professional journalists,
who, for gain or livelihood are engaged in preparing or editing news
for a newspaper."131 The court also cited case law defining a
newspaper as having a "paid circulation" and "entered at the United
States post office as a Second Class matter."132
In one unusual case, the Colorado Supreme Court upheld a news
helicopter pilot could invoke a reporter's privilege and refuse to
give testimony in a pre-trial criminal action.133 The news station
had entered into an agreement with the police that allowed them to
use the news helicopter to conduct a search of a suspected drug
dealer with the understanding that the television station could later
report on it. While it was questionable whether the news station
inappropriately became an agent of the police, the court ruled that
the helicopter operator was acting in his capacity as a journalist at
the time, and thus could be prevented from testifying.134
Other cases show even more unusual entities attempting to invoke the
privilege. In a 1995 New Jersey case, a public relations company
attempted to invoke the privilege in order to avoid testifying and
turning over documents about a client it represented.135 The firm was
subpoenaed in a civil lawsuit between two companies to provide
documents it created when developing a strategy to respond to an
explosion at a chemical plant. The firm argued that because it
"regularly disseminates information to the public regarding
newsworthy event," and because the information it obtained was done
so after promises of confidentiality, it would be able to invoke the
privilege.136 The New Jersey statute broadly defines news media to
include "printed … means of disseminating information to the general
public." However, the court rejected the argument, saying P.R. firms
are "neither part of the traditional or nontraditional news
media."137 The court said the firm was more "part of the news" rather
than a member of the news media reporting news.138
Wisconsin privilege
Wisconsin's privilege is based on two state Supreme Court cases from
the 1970s involving reporters for Kaleidoscope and Take Over, two
underground newspapers. Both newspapers embodied the characteristics
of the antagonistic alternative media. They were lewd, opinionated
and critical of the mainstream press for furthering inequities in
society by not giving a voice to the powerless. They may provide some
comparison to the contemporary world of the blogosphere, which often
criticizes the mainstream media for its elitism.
Interestingly, in both cases the Wisconsin Supreme Court accepted
without any analysis the status of both underground writers as
journalists for the purpose of the privilege, although one justice in
a dissent noted the majority's acceptance without analysis that
"journalist" also encompassed "without distinction one of the
underground press."139
The first case stemmed from the Aug. 26, 1970, edition of the
Madison Kaleidoscope. The paper published a front-page statement
attributed to bombers of the Army Math Research Center, who allegedly
planted a bomb in Sterling Hall on the University of
Wisconsin-Madison campus that killed one man. The next day, Mark
Knops, an editor at the paper, was subpoenaed to testify before a
grand jury investigating a possible conspiracy connected to an arson
in Whitewater. Knops appeared before the grand jury but refused to
answer some questions about the bombers' identities. A judge held
Knops in contempt sentenced him to six months in jail.140
At least some raised questions about the appropriateness of
Knops invoking a reporter's privilege. One article quoted John W.
Hushen, identified as a "PR man" for the U.S. Department of Justice,
saying Attorney General John Mitchell has made no decision "as to
whether the underground press merits the same protection as that
given to the establishment press."141
In its decision issued on Feb. 2, 1971, the Wisconsin Supreme
Court noted Knops' First Amendment arguments were relatively
novel.142 Given its conclusion that Knops knew the identities of
anarchists and killers, "the need for answers" to "five very narrow
and specific questions" is "overriding, to the say least," and the
court upheld Knops' contempt sentence.143 The court reached the
decision after balancing the "interest of free flow of information"
against the "interest of fair and effective administration of the
judicial system," and determining the information sought could not be
obtained by "alternative means."144 While the case was a loss for
Knops, it did establish a First Amendment-based reporter's privilege
in Wisconsin.
Eight years later, the Wisconsin Supreme Court was again
confronted with a First Amendment argument for a privilege by an
underground newspaper. In its August 1975 issue the underground
newspaper Take Over, based in Madison, published a story citing
"sources inside the Madison Police Department" with allegations that
police officials had given Mike Posthuma and Billy Cook money to buy
marijuana as part of an undercover drug buy in which Posthuma and
Cook were murdered.145 A jury convicted Robert Zelenka of
first-degree homicide. Zelenka's defense attorney sought testimony
from Michael Fellner, the reporter of the Take Over story, and the
trial judge refused to compel his testimony. The failure of the judge
to order the testimony was raised an issue in Zelenka's post-conviction appeal.
Take Over was even more provocative than Kaleidoscope, giving
it even fewer qualities of traditional journalism. It occasionally
printed fake news, much like the satirical The Onion newspaper, next
to factual stories without any distinction as to real or fake.146 It
regularly published nude photos that pushed the lines of legal
obscenity. One issue about homosexuality included on its cover an
exposed penis, and inside about a dozen photographs of a penis in
various stages of arousal.147 The paper regularly crusaded against
police, calling them "pigs" in headlines and using profanities like
"Fuck You!" in margins.148 It also published a chart with the home
addresses and phone numbers of 40 Madison police officers, including
undercover cops, with the headline, "Top Forty M.D.A. Pig Hits."149
Using contemporary standards, Take Over was not an example of
good journalism. However, in ruling on Fellner's ability to invoke a
reporter's privilege, the Wisconsin Supreme Court again made no
distinction between Fellner and traditional journalists.150 The
Supreme Court noted that Branzburg was limited in determining "there
is no First Amendment privilege to refuse to testify before a grand
jury where the journalist had witnessed criminal activity."151 The
court then essentially re-decided the Knops case, saying that while
the court previously had found the privilege in the federal First
Amendment, it could just as easily have found the privilege under
Art. 1, sec. 3 of the Wisconsin Constitution, which says, "Every
person may freely speak, write, and publish his sentiments on all
subjects, being responsible for the abuse of that right, and no laws
shall be passed to restrain or abridge the liberty of speech or of
the press."152 The court applied the Knops balancing test and
concluded in favor of Fellner. Mere speculation that Fellner's
testimony could provide Zelenka with evidence of police entrapment is
not enough to tip the scales in favor of overriding the privilege.
The Wisconsin Supreme Court last reaffirmed both the Knops and
Zelenka decisions in 1983.153
Historical precedents establish clear guidelines for Apple case
While traditional journalists working for newspapers and television
news stations continue to be the most common class of people to
invoke a reporter's privilege under a range of laws,154 others have
long sought a similar right. Book authors and academic scholars, in
particular, have been successful in invoking the privilege because
their work – by process and by product – is similar to traditional
newspaper reporters, who in historic terms best embody the concept of
"the press." This comparison will likely be pivotal for future
bloggers who attempt to invoke the privilege.
The courts have rightly prevented those on the periphery of
journalism from invoking the privilege. When "an intimate friend" of
an accused murderer orders investigations into the defendant's
children, when a public-relations firm attempts to hide its advice to
clients, or when a professional wrestling commentator is fed false
information from his bosses about a competing wrestling organization,
judges have found that those people's intentions, habits, and work
product are so far removed from "traditional journalism" that they
should not be afforded the privilege.
While the Internet's ability to allow anyone to publish and
disseminate information has given rise to concern about the
application of reporter's privilege online, in fact privilege law has
been tested many times by non-traditional journalists. The sum of
this case law presents clear guidelines for how they can, and should,
be applied in cyberspace.
The most detailed courts of appeals cases clearly show the
emergence of a test in determining whether someone should be allowed
to invoke the privilege: did the person intend at the beginning of
the news gathering process to disseminate the information to the
public? The appeals cases in von Bulow, Shoen, and Madden are most
instructive. While the test may be deceivingly simple, it requires
several findings. People asserting the privilege must make a showing
of intent to disseminate at the outset of information gathering. This
bar may seem low. However, it excludes information gathered for
strictly personal reasons and it requires people to prove their
motives for obtaining the information. Secondly, the material must be
of newsworthy value, eliminating those whose work is primarily of
entertainment, personal, or fictional value. Third, the process and
information must be related to journalism or investigative reporting,
at least as outlined in the three appeals court cases.
There may be some drawbacks. One scholar argues that the test was
wrongly applied in Madden by excluding the professional wrestling
commentator from invoking the privilege because the court engaged in
content-based analysis in deciding Madden's work was primarily
entertainment.155 Another scholar argues that in an age of media
consolidation and the mixing of entertainment and news, the Madden
test could prove impossibly ambiguous given the changing standards of
news and entertainment.156 Katie Couric on the Today Show, for
example, easily moves from interviewing celebrities promoting
upcoming movies to politicians and newsmakers. Anderson Cooper, the
current star anchor and reporter at CNN, worked as the host of a
reality-television show on ABC that was clearly not journalism. The
"news" prong of the test inherently requires some judgment by courts
about content, and that is unsettling given the First Amendment's
traditional prohibition of content analysis. That said, courts have
adopted content-based regulations for things like commercial
advertising and political spending. Perhaps this limited
content-specific analysis is what's required to maintain the
privilege for the cases where it's needed most.
Regardless, those who worry that bloggers threaten the logic and
practicality of a reporter's privilege law are misguided. Ample case
law dealing with similar issues presents clear guidance on how to
apply the law in new contexts. Bloggers who toil in the realm of
entertainment, public relations or who gather information for
personal reasons would not be able to claim the privilege. However,
bloggers whose work and purposes are those "traditionally inherent to
the press" may invoke the privilege if they meet the threshold test
articulated in von Bulow, Shoen, and Madden.
In the Apple cases, three of the four bloggers have been
subpoenaed as non-party witnesses in civil lawsuits against unnamed
people, presumably Apple employees, who have leaked confidential
information that may be covered under trade secret laws. Apple wants
the bloggers to identify their sources so Apple can proceed with
lawsuits against them. The bloggers have sought to invoke a
reporter's privilege, and all claim that what they do is akin to
traditional journalism.157 The fourth Apple blogger is being sued
directly for illegally disseminating trade secrets. "What (they) do
is journalism – seeking out information, and presenting it to their
audiences," Thomas Goldstein, director of the Mass Communications
Program at the University of California at Berkeley, said in a court
declaration.158 The bloggers specialize in Apple products and the
broader computer industry, distinguish on their Web sites between
advertising and editorial content, have established an independence
from their sources, and have broken news stories that are regularly
updated with progressively more details. The blogs "are online
publications that are the electronic equivalent of print publications
like newspapers or magazines" and have over time "established a track
record, reputation, and identity with their audiences."159 One of the
blogs, Powerpage.org, averages 300,000 monthly visits, while in
comparison MacWorld, a leading Apple Computer-related magazine, has a
monthly circulation of just over 250,000.160
Using the courts of appeal tests, the bloggers appear to meet
all prongs. They have established intent to disseminate information
at the outset of newsgathering given their track record. They deal
with newsworthy information given the extent to which Apple tries to
control the release the information and the connection to
technological developments and consumer news. Finally, their work
habits and processes seem to be akin to investigative reporting given
the wide range of sources and context they use in their regular stories.
The bloggers in the Apple cases seem to more analogous to book
authors, freelance writers, employees of niche trade publications, or
student journalists than they are to public relations firms or
professional wrestling commentators. Their traits, work product, and
work processes seem to fit well into the growing expanse of
non-traditional journalists who deserve similar protections. Granting
them the right to invoke the privilege falls squarely within the
legal trend of the past 33 years since Branzburg to grant a
reporter's privilege to those people whose work is traditionally
associated with the press. Additionally, granting them the right to
the privilege doesn't open the floodgates for all bloggers. Following
the doctrinal line of these cases, standards exist to evaluate
bloggers whose purpose and work is far removed from newsgathering and
journalism. To this end, bloggers do not present insurmountable legal
challenges to a reporter's privilege.
1 Apple Computer, Inc. v. Nick DePlume. No. 1-05-CV-033341 (Cal.
Super. Ct. Complaint filed Jan. 18, 2005).
2 Apple Computer, Inc. v. Doe, No. 1-04-CV-032178 (Cal. Super. Ct,
Mar. 1, 2005), available at
http://www.eff.org/Censorship/Apple_v_Does/20050311_apple_decision.pdf
(last visited Dec. 18, 2005).
3 Think Secret Goes On Offensive, Asks to Have Apple Lawsuit
Dismissed, http://www.thinksecret.com/news/antislapp.html (last
visited Dec. 18, 2005).
4 Defendant DePlume Organization's Memorandum in Support of Special
Motion to Strike. Apple Computer, Inc. v. Nick DePlume. No. 1-05-CV-033341.
5 Josh Gerstein. Bloggers Blur the Definition of Reporters'
Privilege. THE NEW YORK SUN. Dec. 6, 2004.
6 Branzburg v. Hayes, 408 U.S. 665, 704 (1972).
7 See generally David Anderson, Freedom of the Press, 80 Tex. L. Rev.
429 (2002) (exploring the history of the press as an institution);
David Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455
(1982-1983); Leonard Levy, On the Origins of the Free Press Clause,
32 UCLA L. Rev. 177 (1984-1985); Randall P. Bezanson, The New Free
Press Guarantee, 63 Va. L. Rev. 731 (1977); Potter Stewart, Or of the
Press, 26 Hastings L.J. 631 (1974-1975).
8 See Anthony Lewis, A Preferred Position for Journalism?, 7 Hofstra
L. Rev. 595 (1978-1979).
9 Compare Justice White's majority decision in Branzburg (explaining
the "questionable procedure" a privilege would require "to define
categories of newsmen who qualified for the privilege" at Branzburg,
408 U.S. at 704) with Justice Douglas's dissent (saying "the press
has a preferred position in our constitutional scheme … to bring
fulfillment to the public's right to know" at Branzburg, 408 U.S. at 721).
10 Playboy Enterprises v. Los Angeles County, 154 Cal. App. 3d 14,
(C.A. Ct. App. 1984); People v. Von Villas, 10 Cal. App. 4th 201,
(C.A. Ct. App. 1992); Northside Sanitary Landfill, Inc. v. Bradley,
462 N.E.2d 1321, (Ind. App. Ct. 1984).
11 U.S. v. Doe (In the matter of Richard Falk) 332 F. Supp. 938 (D.
Mass. 1971); Wright v. Jeep Corp, 547 F. Supp. 871 (E.D. Mich. 1982);
In re: Grand Jury Subpoena, 583 F. Supp. 991 (E.D.N.Y. 1984); In re:
Grand Jury Proceedings (Scarce v. U.S.), 5 F.3d 397 (9th Cir. 1993);
Cusumano v. Microsoft, 162 F.3d 708 (1st Cir. 1998).
12 Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993); Florida v. Trepal, 24
Med. L. Rptr 2595 (Fla. Cir. Ct. 1996); People v. Le Grand, 67 A.D.2d
446 (N.Y. App. Ct. 1979); Matera v. Superior Court, 825 P.2d 971
(Ariz. App. Ct. 1992).
13 Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993); New York v.
Hennessey, 13 Med. L. Rptr 1109 (N.Y. Dist. Ct. 1986).
14 In re: Madden (Titan Sports v. Turner Broadcasting), 151 F.3d 125
(3rd Cir. 1998).
15 Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y.
1975); In Re: Scott Paper, 145 F.R.D. 366 (E.D. Penn. 1992); Summit
Tech., Inc. v. Healthcare Capitol Group Inc., 141 F.R.D. 381 (D.
Mass. 1992); PPM America v. Marriot Corp., 152 F.R.D. 32 (S.D.N.Y.
1993); Commodity Futures Trading Commission v. The McGraw-Hill
Companies, 390 F. Supp. 2d 27 (D. D.C. 2005); In the Matter of the
Petition of Burnett, 269 N.J. Super. 493 (N.J. Super. Ct. 1993);
Cukier v. American Medical Association, 259 Ill. App. 3d 159 (Ill.
App. Ct. 1994).
16 Builders Assoc. of Greater Chicago v. County of Cook, 1998 U.S.
Dist. LEXIS 2991 (N.D. Ill. 1998); Quigley v. Rosenthal, 43 F. Supp.
2d 1163 (D. Col. 1999); Anti-Defamation League v. San Francisco 67
Cal. App. 4th 1072 (Cal. Ct. App. 1998).
17 Henderson v. Colorado, 879 P.2d 383 (Col. 1994).
18 In re: Gordon v. Boyles, 9 P.3d 1106 (Col. 2000).
19 In Re Napp Technologies, Inc., 338 N.J. Super. 176 (N.J. Super. Ct. 2000).
20 Silkwood v. Kerr-McGee, 563 F.2 433 (10th Cir. 1997).
21 State v. Knops, 49 Wis. 2d 647 (Wis. 1971) and Zelenka v. State,
83 Wis. 2d 601 (Wis. 1978).
22 See e.g., Von Bulow, 811 F.2d at 142 (articulating "certain
principles" to use in determining whether "one is a member of the
class entitled to claim the privilege); Shoen, 5 F.3d at 1293 (citing
von Bulow in saying "the critical question for deciding whether a
person may invoke the journalist's privilege is whether she is
gathering news for the dissemination to the public" and "[whether]
such intent existed at the inception of the newsgathering process")
and Madden, 151 F.3d at 129-130 (emphasizing the von Bulow test
"requiring an intent at the inception of the newsgathering process to
disseminate investigative news to the public. As we see it, the
privilege is only available to persons whose purposes are those
traditionally inherent to the press; persons gathering news for
publication"). See generally Clay Clavert, And You Call Yourself a
Journalist? Wrestling With a Definition of "Journalist" in the Law,
103 Dick. L. Rev. 411, (1999); Kraig L. Baker, Are Oliver Stone and
Tom Clancy Journalists? Determining Who Has Standing to Claim the
Journalist's Privilege, 69 Wash. L. Rev. 739 (1994); Daniel A.
Swartwout, In Re Madden: The Threat to New Journalism, 60 Ohio St.
L.J. 1589 (1999); Laurence B. Alexander, Looking Out for the
Watchdogs: A Legislative Proposal Limiting the Newsgathering
Privilege to Journalists in t he Greatest Need of Protection for
Sources and Information, 20 Yale L. & Pol'y Rev. 97 (2002); 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 (2003).
23 Von Bulow 811 F. 2d at 145 (determining that an "intimate friend"
and "steady companion" of a man accused of attempted murder could not
invoke the privilege despite some evidence of previous press
credentials. Central to the court's determination was "at the time"
of the information gathering, the woman "did not intend … to
disseminate information to the public."). See also Madden 151 F.3d at
130 (concluding that a professional wrestling commentator's "primary
goal is to provide advertisement and entertainment – not to gather
news or disseminate information.")
24 See generally Vince Blasi, The Newsman's Privilege: An Empirical
Study, 70 Mich. L. Rev. 229 (1971-1972) and Stephen Bates, The
Reporter's Privilege, Then and Now, Research Paper R-23, The Joan
Shorenstein Center on the Press, Politics and Public Policy, John F.
Kennedy School of Government, Harvard University, April 2000,
available at http://www.ksg.harvard.edu/presspol (follow "Research &
Publications" hyperlink, then "Reports" hyperlink).
25 See e.g., Douglas McCollam, Attack at the Source, COLUMBIA
JOURNALISM REVIEW, March/April 2005, (quoting New York Times
publisher Arther Sulzberger, Jr.: "If we can't protect (sources),
we'll be filling our paper with press releases and agency reports,"
at 31); Katharine Q. Seelye, Journalists Fear Impact On Protecting
Sources, NEW YORK TIMES, Oct. 1, 2005.
26 Bates, supra note 24, at 2.
27 Id.
28 Garland v. Torre. 259 F.2d 545, 548.(2nd Cir., 1958), cert.
denied, 358 U.S. 910.
29 Id. at 548.
30 See generally supra note 24.
31 Vincent Blasi. The Checking Value in First Amendment Theory. 1997
A.B.F.Res.J. 521 (1977).
32 Id.
33 New York Times Co. v. United States. 403 U.S. 713, 717 (1971).
34 Alexander Meiklejohn. Political Freedom. Excerpted in JOHN GARVEY
& FREDERICK SCHAUER. THE FIRST AMENDMENT: A READER. (2nd ed., 1996).
35 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS. THE REPORTER'S
PRIVILEGE. 2002. Available at http://www.rcfp.org/privilege/index.html.
36 Branzburg v. Pound, 461 S.W. 2d 345 (Ken. App. Ct. 1970);
Branzburg v. Meigs, 503 S.W.2d 748, (Ken. App. Ct. 1971); In re
Pappas, 266 N.E. 2d 297, (Mass. 1971); Caldwell v. U.S., 434 F.2d
1081 (9th Cir. 1970).
37 Id.
38 Branzburg v. Hayes, 408 U.S. 665 (1972).
39 Branzburg, 408 U.S. at 709.
40 See generally 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 (2002); Paul
Marcus, The Reporter's Privilege: An Analysis of the Common Law,
Branzburg v. Hayes, and Recent Statutory Developments, 25 Ariz. L.
Rev. 815 (1983-1984); and David Joseph Onorato, A Press Privilege for
the Worst of Times, 75 Geo. L.J. 361 (1986).
41 Branzburg, 408 U.S. at 743.
42 Branzburg, 408 U.S. at 704.
43 Id. at 704, quoting Lovell v. Griffin, 303 U.S. 444, 450, 452 (1938).
44 See supra note 40.
45 Id.
46 Id.
47 See generally Anthony L. Fargo, Reconsidering the Federal
Journalist's Privilege for Non-Confidential Information: Gonzales v.
NBC, 19 Cardozo Arts & Ent. L.J. 355 (2001); Heather Stamp, McKevitt
v. Pallasch: How the Ghosts of the Branzburg Decision Are Haunting
Journalists in the Seventh Circuit, 14 DePaul-LCA J. Art & Ent. L.
363 (2004); and Julie M. Zampa, Journalist's Privilege: When
Deprivation is a Benefit, 108 Yale L.J. 1449 (1998-1999).
48 See Marcus, supra note 40.
49 See Daniel Scardino, Vanessa Leggett Serves Maximum Jail Time,
First Amendment-Based Reporter's Privilege Under Seige, Available at
http://library.findlaw.com/2003/Jun/25/132831.html; Guillermo X.
Garcia, The Vanessa Leggett Saga, AMERICAN JOURNALISM REVIEW (March
2002); and Skip Hollandsworth, The Inmate, TEXAS MONTHLY, Dec. 1, 2001.
50 In re Grand Jury Subpoenas. No. 01-20745. 29 Med.L.Rptr. 2301.
51 Id. at 2303 ("Because the First Amendment news reporter's
privilege is inapplicable in this case whether or not Leggett is a
journalist, we do not reach this issue").
52 Pam Belluck. Reporter Granted Release From Sentence, NEW YORK
TIMES. April 7, 2005.
53 In Re: Grand Jury Subpoena, Judith Miller. 397 F.3d 964 (D.C. Cir. 2005).
54 Id. at 979-980.
55 Judith Miller. My Four Hours Testifying in the Federal Grand Jury
Room, NEW YORK TIMES. Oct. 16, 2005.
56 Statement by Judge in Los Alamos Case, With Apology for Abuse of
Power, NEW YORK TIMES. Sept. 14, 2000.
57 James Sterngold, Scientist's Suit A Blow to Press Shield, San
Francisco Chronicle, Nov. 6, 2005 (The reporters were James Risen and
Jeff Gerth of the New York Times, H. Josef Hebert of the Associated
Press, Robert Drogin of the Los Angeles Times, and Pierre Thomas of CNN).
58 Lee v. DOJ. 413 F.3d 53 (D.C. Cir. 2005).
59 Id. at 57.
60 Id. at 57.
61 Lee v. DOJ 205 U.S. App. LEXIS 23693 (D.C. Cir. Nov. 2, 2005).
62 Laurence B. Alexander. Branzburg v. Hayes Revisited. A Survey of
Journalists Who Become Subpoena Targets. Newspaper Research Journal.
Athens: Spring 1994. Vol. 15. Iss. 2. Pg. 83.
63 Reporters Committee for Freedom of the Press. Agents of Discovery:
A Report on the Incidence of Subpoenas Served on the News Media in
2001. Available at http://www.rcfp.org/agents/index.html.
64 Id.
65 In Re Jeffrey Steinberg, 837 F.2d 527 (1st Cir. 1988); Cusumano v.
Microsoft, 162 F.3d. 708 (1st Cir. 1998); Von Bulow v. Von Bulow, 811
F.2d 136 (2nd Cir. 1987); In Re: Madden (Titan Sports v. Turner
Broadcasting), 151 F.3d 125 (3rd Cir. 1998); Shoen v. Shoen. 5 F.3d
1289 (9th Cir. 1993); In re: Grand Jury Proceedings (Scarce v. U.S.),
5 F.3d 397 (9th Cir. 1993); Silkwood v. Kerr-McGee. 563 F.2d 433
(10th Cir. 1977).
66 Apicella v. McNeil Laboratories, 66 F.R.D. 78 (E.D. N.Y. 1975)
67 In Re Grand Jury Subpoena, 583 F. Supp. 991 (E.D. N.Y. 1984)
68 In Re: Scott Paper, 145 F.R.D. 366 (E.D. P.A. 1992)
69 Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D.
381 (D. of Mass. 1992)
70 Blum v. Schlegel, 150 F.R.D. 42 (W.D. N.Y. 1993)
71 Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. of Col. 1999)
72 Commodity Futures Trading Commission v. The McGraw-Hill Companies,
390 F. Supp. 2d 27, (Dist. Ct. D.C. 2005)
73 In Re Grand Jury Subpoena, 583 F. Supp. 991 (E.D. N.Y. 1984)
74 Id. at 993.
75 Id. at 993.
76 In Re: Scott Paper, 145 F.R.D. at 369.
77 Id. at 369.
78 Id. at 368-369.
79 Summit, 141 F.R.D. at 384.
80 Id.at 383.
81 Id. at 385.
82 PPM, 152 F.R.D. at 35.
83 Blum, 150 F.R.D. at 43.
84 Id. at 45.
85 Builders Association of Greater Chicago v. County of Cook, 1998
U.S. Dist. LEXIS 2991 (N.D. Ill. 1998)
86 Id. at 16.
87 Quigley v. Rosenthal, 43 F. Supp. 2d 1163, (D.C. Col. 1999)
88 Id. at 1173.
89 Silkwood v. Kerr-McGee. 563 F.2d 433 (10th Cir. 1977).
90 Id. at 434.
91 Id. at 436-437.
92 Id. at 436-437.
93 Id. at 437, quoting Lovell v. City of Griffin, 303 U.S. 444, 452 (1935)
94 Id. at 437.
95 Garland v. Torre, 259 F.2d 545 (2nd Cir. 1958).
96 Silkwood at 438.
97 Von Bulow v. Von Bulow, 811 F.2d 136 (2nd Cir. 1987).
98 Id. at 138-139.
99 Id. at 143.
100 Id. at 142.
101 Id. at 144.
102 Id. at 145.
103 In Re Jeffrey Steinberg, 837 F.2d 527 (1st Cir. 1988).
104 Id. at 528.
105 Shoen v. Shoen. 5 F.3d 1289 (9th Cir. 1993).
106 Id. at 1291.
107 Id. at 1290.
108 Id. at 1293.
109 Id. at 1294.
110 Cusumano v. Microsoft, 162 F.3d 708 (1st Cir., 1998
111 Id. at 714.
112 Id. at 714.
113 In Re: Madden (Titan Sports v. Turner Broadcasting), 151 F.3d 125
(3rd Cir. 1998).
114 Id. at 127.
115 Id. at 130.
116 Id. at 129-130.
117 Id. at 130.
118 Id. at 130.
119 See supra note 35.
120 D.C. Code §16-4701.
121 Md. Cts & Jud. Proc. Code Ann. §9-112.
122 Neb. Rev. Stat. § 20-144; N.J. Stat. Ann. Tit. 2A, ch. 84A, 21a.
123 Or. Rev. Stat. § 44.620, 44.510.
124 Ga. Code Ann. § 24-9-30.
125 735 Ill. Comp. Stat. Ann 5/8-901.
126 Ky. Rev. Stat. Ann. § 421.100.
127 Okla. Stat. tit. 12, § 2506.
128 Matera v. Superior Court. 170 Ariz. 446 (Ariz. App. Ct.1992).
129 Id. at 448.
130 Id. at 448.
131 New York v. Hennessey, 13 Med. L. Rptr 1109 (N.Y. Dist. Ct. 1986).
132 Id. at 1110.
133 Henderson v. Colorado, 879 P.2d 383 (Col. 1994).
134 Id.
135 In Re Napp Technologies, 338 N.J. Super. 176 (N.J. Sup. Ct. 2000).
136 Id. at 181-182.
137 Id. at 187.
138 Id. at 187.
139 State v. Knops. 49 Wis. 2d 647. (Wis. 1971)
140 Id.
141 Madman is Loose: Knops Free on Bond For Appeal, KALEIDOSCOPE.
Jan. 6, 1971 (mislabeled Jan. 6, 1970)
142 Knops 49 Wis. 2d at 651.
143 Id. at 658.
144 Id. at 659.
145 Police Covered Up Posthuma & Cook: Metro Narc Squad Financed
Death Deal. TAKE OVER. August 1975.
146 State Conceals Murder By Machine at Oscar Mayer. TAKE OVER. Dec. 8, 1971.
147 TAKE OVER. Jan. 5, 1972.
148 D.A O.D.'s. TAKE OVER. Jan. 19, 1972.
149 Top Forty M.D.A. Pig Hits. TAKE OVER, Feb. 2, 1972.
150 Zelenka v. State. 83 Wis. 2d 601, 617-618, (1978)
151 Id. at 617-618.
152 WIS. CONST. art. I, sec. 3.
153 Green Bay Newspaper v. Circuit Court. 113 Wis. 2d 411.
154 See supra note 63.
155 See Swartwout, supra note 22.
156 See Clavert, supra note 22.
157 See generally http://www.eff.org for court filings and overviews
of the bloggers' arguments. (Last visited Dec. 18, 2005).
158 Declaration of Professor Thomas Goldstein in Support Of Non-Party
Journalists' Motion for a Protective Order. Apple Co. v. Doe, No.
1-02-CV-032178. Available at
http://www.eff.org/Censorship/Apple_v_Does/declaration_goldstein.pdf.
159Id.
160 Petition for Writ of Mandate, O'Grady, et al. v. Apple Computer,
Inc., Case No. H028579. Available at:
http://www.eff.org/Censorship/Apple_v_Does/20050322_writ_petition.pdf.
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