Protecting sources

A constitutional clash — withthe media on the losing end

An old dilemma

• In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate

An old dilemma

• In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate

• The Herald gave Nugent a raise

An old dilemma

• In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate

• The Herald gave Nugent a raise• After a month, the Senate gave up

Another clash over the Sixth

• “[T]he accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor”

Another clash over the Sixth

• “[T]he accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor”

• All must testify before the grand jury

Another clash over the Sixth

• “[T]he accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor”

• All must testify before the grand jury• The First Amendment belongs to everyone,

not just the press

Journalist’s orreporter’s privilege

• As with free press/fair trial, a balancing test

Journalist’s orreporter’s privilege

• As with free press/fair trial, a balancing test• Courts decide on a case-by-case basis

Journalist’s orreporter’s privilege

• As with free press/fair trial, a balancing test• Courts decide on a case-by-case basis• Guidelines have shifted over time

Branzburg v. Hayes (1972)

• Paul Branzburg’s sources had information about drugs

• Two co-defendants had done confidential reporting on the Black Panther Party

Byron “Whizzer” White

• Wrote majority opinion

• Rejected reporter’s privilege

• Wrote that “the lonely pamphleteer” is as important as professional journalists

Potter Stewart

• Wrote minority decision• Criticized majority’s

“disturbing insensitivity” to the role of a free press

• Proposed a three-part balancing test

The Stewart test

• Does the journalist possess “clearly relevant” information?

The Stewart test

• Does the journalist possess “clearly relevant” information?

• Is there no way of obtaining the information by “less destructive” means?

The Stewart test

• Does the journalist possess “clearly relevant” information?

• Is there no way of obtaining the information by “less destructive” means?

• Is there a “compelling and overriding need” for the information?

Powell’s “enigmaticconcurring opinion”

• Sides with majority’s view that there is no reporter’s privilege

• Calls for “striking of a proper balance” between freedom of the press the obligation to testify

• Stewart wins by losing (but not forever)

The balancing test in practice

• Relevance and importance of information

The balancing test in practice

• Relevance and importance of information• Availability through alternative means

The balancing test in practice

• Relevance and importance of information• Availability through alternative means• Type of controversy

– Reporter’s privilege is weaker in a criminal case than a civil case

The balancing test in practice

• Relevance and importance of information• Availability through alternative means• Type of controversy• How information was gathered

– Confidential sources are more privileged than first-hand observation such as Josh Wolf’s footage

Shield laws

• About 30 states have them– A shield law is being considered in

Massachusetts

Shield laws

• About 30 states have them• Except for Wyoming, remaining states have

judicial opinions granting some degree of journalistic privilege

Shield laws

• About 30 states have them• Except for Wyoming, remaining states have

judicial opinions granting some degree of journalistic privilege

• None is absolute — more like the Stewart balancing test

Shield laws

• About 30 states have them• Except for Wyoming, remaining states have

judicial opinions granting some degree of journalistic privilege

• None is absolute — more like the Stewart balancing test

• No federal shield law

What should be protected?

• Justice White said you can’t define who is a journalist

• Vanessa Leggett ran afoul of this and served 168 days

• Is it possible to define journalism?

Citizen journalists

• Josh Wolf is the modern “lonely pamphleteer”

• We need to protect journalism, and not worry about who’s a journalist

Media arrogance• Mark Bowden asks:

Why should the media stand in the way of justice?

• “The First Amendment protects freedom of the press, but it doesn’t absolve it from all civic responsibility”

Cohen v. CowlesMedia Co. (1991)

• Damned if you do, damned if you don’t

Cohen v. CowlesMedia Co. (1991)

• Damned if you do, damned if you don’t• Based on the doctrine of promissory estoppel

– A false promise that leads someone to engage in damaging behavior

– Similar to contract law

Cohen v. CowlesMedia Co. (1991)

• Damned if you do, damned if you don’t• Based on the doctrine of promissory estoppel

– A false promise that leads someone to engage in damaging behavior

– Similar to contract law• Justice White: “generally applicable laws” do

not violate First Amendment

McKevitt v. Pallasch (2003)

• Richard Posner a highly influential conservative judge

• Can’t ignore Supreme Court precedent

• Tells colleagues to re-read Branzburg and see it for what it is

Judith Miller case (2005)

• Judge Sentelle adopts Posner’s view

• Notes that Justice Powell sided with the Branzburg majority

• Adds that Justice Department used balancing test