Douglas , Potter Stewart , William J. Brennan Jr. The dissenters proposed a three-pronged guideline to protect the identity of a confidential source.
Justice Lewis F. Powell Jr. According to the Reporters Committee for Freedom of the Press, state courts, state constitutions, and common law have generally exercised three options in this area.
For example, the Supreme Court of Washington state recognized a qualified privilege in civil cases initially and later in criminal cases. In a third option, courts in some states, among them New Mexico, can create their own rules of procedure. Furthermore, in the absence of a court-recognized privilege, or applicable shield law , journalists have successfully persuaded courts to quash subpoenas on the basis of generally applicable laws, including state rules of evidence.
Yet another option is a statutory protection that gives journalists privilege against forced production of confidential or unpublished information. Forty-nine states and the District of Columbia have enacted such statutes, called shield laws.
These statutes tend to give more protection to reporters than does the federal Constitution or state constitutions. Shield laws have limitations, however. For example, in some states a reporter forfeits the privilege if he or she discloses a portion of the confidential matter in question. In a few states, shield laws are not applicable unless confidentiality is understood between a reporter and the source. In , then- U. Pence became vice president of the United States in However, the measure did not pass.
Pence and others introduced similar measures in , , and In , the measure passed the House, but the bill never made it to the Senate floor for a vote. In , U. Jim Jordan, R-Ohio, and U. Jamie Raskin, D-Maryland, renewed the effort for a federal shield law with a new bill with similar elements.
This article first was published in and has been updated. The primary contributor was John Omachonu. It has been updated by other First Amendment Encyclopedia contributors. Peters, Jonathan. Journalists should note that reading this guide is not meant as a substitute for working with a licensed attorney in your state when you try to have a subpoena quashed.
You should always consult an attorney before trying to negotiate with a party who wants to obtain your testimony or when appearing in court to get a subpoena quashed or testifying. If your news organization does not have an attorney, or if you are not affiliated with an established organization, the Reporters Committee can help you try to find an attorney in your area.
In the course of gathering news, journalists frequently rely on confidential sources. Many sources believe they may be subject to retribution for exposing matters of public importance to the press unless their identity remains confidential. Doctor-patient, lawyer-client and priest-penitent relationships have long been privileged, allowing recipients to withhold confidential information learned in their professional capacity.
In criminal cases, prosecutors argue that reporters, like other citizens, are obligated to provide relevant evidence concerning the commission of a crime. Criminal defendants argue that a journalist has information that is essential to their defense, and that the Sixth Amendment right to a fair trial outweighs any First Amendment right that the reporter may have.
Civil litigants may have no constitutional interest to assert, but will argue that nevertheless they are entitled to all evidence relevant to their case. When reporters challenge subpoenas, they argue that they must be able to promise confidentiality in order to obtain information on matters of public importance. When asked to produce their notes, documents, or other unpublished material obtained during news gathering, journalists argue that these subpoenas intrude on the editorial process, and thus violate their First Amendment right to speak without fear of state interference.
Some litigants who request information from the media are simply lazy. Rather than investigating to find appropriate witnesses, these litigants find it simpler and cheaper to compel journalists to reveal their sources or to hand over information. But journalists also have legitimate reasons to oppose subpoenas over published, non-confidential information. Responding to such subpoenas consumes staff time and resources that should be used for reporting and editing.
Most journalists feel an obligation to protect their confidential sources even if threatened with jail time. When appeals have been exhausted, the decision to reveal a source is a difficult question of journalism ethics, further complicated by the possibility that a confidential source whose identity is revealed may try to sue the reporter and his or her news organization under a theory of promissory estoppel, similar to breach of contract.
The U. Supreme Court has held that such suits do not violate the First Amendment rights of the media. Cohen v. Cowles Media Co. The first and only time the U. Hayes , U. Justice Byron White, joined by three other justices, wrote the opinion for the Court, holding that the First Amendment does not protect a journalist who has actually witnessed criminal activity from revealing his or her information to a grand jury.
However, a concurring opinion by Justice Lewis Powell and a dissenting opinion by Justice Potter Stewart recognized a qualified privilege for reporters. These four justices together with Justice William O. The high court has not revisited the issue, and the lower courts have disagreed in their interpretation of Branzburg. Since Branzburg was decided, a national consensus has emerged among the states, establishing protections for journalist-source communications.
However, each of these states, with the exception of Hawaii and Wyoming , have recognized some form of a privilege, either through judge-made common law or court rules. See , e. There is still no federal shield law. Members of Congress have proposed various iterations of one in recent years, though none have passed the Senate.
Jamie Raskin D-MD introduced the PRESS Act , which would broadly protect journalists from having to disclose source information or work product to federal government entities, with limited exceptions. Nevertheless, journalists facing subpoenas in federal court may still have some protections available to them, but this will depend on the jurisdiction and type of case. Constitution—then the court will likely apply federal law, and the state shield law may not be available to the reporter.
Even if the shield law does not apply in federal court, in the decades since Branzburg was decided, most federal appellate courts have recognized some form of a qualified privilege for journalistic materials. Courts of Appeal for the Seventh and Eighth Circuits are the only circuits that have not yet definitively done so. Circuits have recognized a privilege in at least some cases, derived from the First Amendment. And at least the Third Circuit has also described the privilege as arising from federal common law.
Even in the absence of an applicable shield law or court-recognized privilege, journalists are sometimes successful in persuading courts to quash subpoenas based on generally-applicable rules against unduly burdensome subpoenas.
The scope of the privilege varies significantly depending on whether state or federal law applies, whether the underlying case is civil or criminal , and whether the subpoena seeks confidential or non-confidential information.
Shield laws generally give greater protection to journalists than the state or federal constitution, according to many courts. Shield laws usually have specific limits that exclude some journalists or certain material from coverage.
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