Reporter's privilege

Overview

In the United States, the reporters' privilege (also called journalists' privilege) is a limited (qualified) right many state jurisdictions have afforded journalists by statute or judicial decision under which they can protect the identity of their confidential sources from disclosure. While the U.S. Supreme Court has rejected such a privilege under the First Amendment, a majority of federal courts of appeal and states recognize such a privilege.

U.S. Supreme Court Proceedings

The U.S. Supreme Court has refused to find such a privilege under the First Amendment. In Branzburg v. Hayes, the Court wrote that journalists claim "that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment." The Court held, nonetheless, that "the First Amendment did not provide even a qualified privilege for journalists to refuse “to appear and testify before state or federal grand juries."

However, the Branzberg Court said that "Whether or not the First Amendment provides a journalists' privilege, Congress and state legislatures may enact statutory privileges, and federal and state courts may adopt common-law privileges."

Federal Circuit Courts of Appeal Proceedings

Federal Rule of Evidence 501 provides that

“

the privilege of a witness . . . 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.”

”

The federal courts are split on whether the common law provides a journalists' privilege.

Panels of the First, Second, Third, Fourth, Fifth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a qualified reporters' privilege exists. A panel of the Court of Appeals for the District of Columbia said that it "is not of one mind on the existence of a common law privilege [in federal court]. . . . However, all [three judges on the panel for the case] believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing."

U.S. Congress

Congress has not enacted a journalists' privilege, although bills that would do so have been introduced in the 110th and 111th Congresses.

On May 2, 2007, companion bills, titled the “Free Flow of Information Act of 2007,” were introduced in the Senate and the House (S. 1267 and H.R. 2102) by Senator Lugar and Representative Boucher, respectively. On August 1, 2007, after lengthy debate, the House Judiciary Committee approved H.R. 2102 with amendments added by voice vote, despite reports of concern expressed by some Members that the definition of "journalist" remained unclear in the final version of the bill. The bill was reported on October 10, 2007, and the House passed it with amendments on October 16, 2007, by a vote of 398-21.

The companion bill, S. 1267, remained in committee, and a new version of the "Free Flow of Information Act of 2007," S. 2035, was introduced in the Senate on September 10, 2007, by Senator Arlen Specter. On October 22, 2007, the Senate Committee on the Judiciary reported it with amendments but without a written report. The motion to proceed to consideration of S. 2035 on the Senate floor was withdrawn on July 28, 2008.

Bills entitled “The Free Flow of Information Act of 2009” have been introduced in both houses in the 111th Congress. These bills would create a qualified privilege for “covered persons” in federal court. The House bill would create a higher hurdle for compelling disclosure than would the Senate bill.

S. 1267, S. 2035, and H.R. 2102 would have established a qualified privilege with respect to both the identity of a source and other information obtained by covered persons with the assurance of confidentiality.

State legislation

Thirty-three states and the District of Columbia have enacted shield laws protecting journalists' anonymous sources.

Factors to be considered

In Mitchell v. Superior Court, the California Supreme Court articulated five factors to consider in deciding whether a journalist may be compelled to disclose the identity of and information from confidential sources. These factors included

1. the nature of the litigation and the reporter's role in it, with disclosure being especially appropriate when a reporter is a defendant in a civil case, and particularly a libel action;
2. the importance of the information, which favors disclosure only if the information goes to “the heart of the plaintiff's claim”;
3. the extent to which the plaintiff has pursued alternative sources of the information;
4. the importance of protecting confidentiality in the case, considering the public importance of the matter and the risk of harm to the source; and
5. whether the plaintiff has made a prima facie showing that the challenged statement was false.

Department of Justice Guidelines

The U.S. Department of Justice has created self-imposed guidelines intended to protect the news media by regulating the use of subpoenas against the press. These guidelines state that "all reasonable attempts should be made to obtain information from alternative sources” before considering issuing a subpoena to a member of the news media. Furthermore, the guidelines require that federal prosecutors negotiate with the press, explaining the specific needs of the case.

Before any subpoena may be issued, the attorney general must approve the issuance. The attorney general’s review for a subpoena to a member of the news media must be based on the following criteria:

• In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation — particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative [[information].
• In civil cases there should be reasonable grounds, based on non-media sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
• The government should have unsuccessfully attempted to obtain the information from alternative non-media sources.
• The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.
• Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.
• Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.

While these guidelines seem extremely protective of the press, they explicitly deny the creation of "any legally enforceable right in any person." Nor does the policy have any substantive punishment for the federal government violations. If the federal prosecutors fail to obtain approval from the attorney general, the extent of the authorized punishment is “an administrative reprimand or other appropriate disciplinary action.” In fact, some courts have found that the guidelines "create no enforceable right." Therefore, in circuits taking this approach, the news media have no right to appeal for enforcement of these policies before being compelled to testify.