- - .- - - -
.....~:-...
A Reporter's
Privilege:
A Question of Interpretation
An Honors Thesis
(JOURN 499)
by
Diane H.
Dr.
Goudy
Beverley Pitts
Ball State University
~luncie,
Indiana
Nay 1987
Spring Quarter 1987
-
);,.
:.
:
l!
--'":
A reporter's
so
that he
stories
at
that he
of
information may
writes.
the
information
report
However,
source
then
which he wouldn't
Because
the
As
a
stories
source
them.
confronted
that anonymity will be
likely to reveal
sources often are about
information
illegal
police
a reporter may be
recent
cases,
grant
activities
investigations
subpoenaed to
to disclose
reporters have held firm
sources of
such a privilege
to withhold
a result,
this
public well-informed.
keep the
absolutely essential
so that
they call gather
public.
The
press has
information,
that reporters have
best
the
this
privilege
interest of
traditionally been viewed as
system of
grounds
reporters would ultimately
information in the
checks-alld-balances
in
information on the
be unable
in the
to
sources confidentiality.
and as
is
who
truth because
news reporters
sources would dry up,
It
sources,
trial.
their refusal
to
sources of
in which a news reporter must
and eventually,
in some
that without
the
their
such as organized crime and drug rings,
testify at
in the
otherwise divulge.
confidentiality to
often result,
public
is writing,
to reveal
often grant
is more
sources
because controversy is often
this difficult dilemma,
situation will
a
to the
-- especially human
may be afraid
When a reporter promises his
granted,
the news
reporter
scarce
truth from his
they provide may be attributed
To overcome
with this
to obtain the
story a
become
for many reasons,
the
is
~ccurately
can
the heart
goal
a
government,
the
participant
as
its
2
-
nickname,
the
playa role
as
a
Fourth Estate
of
an adversary of
"watchdor,"
those
implies.
[or the
people
throughout
the
arisen between [Iews reporters
the nE'ed of
trial may be
in the
both
for
cCJ:luucted.
ments
to
the
freedom of
U.S.
the
but
guard against
weight
and neither
tried by
the balance
From this
developed
to divulge
These
shield
to
of
it
the
is
also
serves
abuses
of
testifying
confidential
privileges,
laws.
asking
side
these
to
For
is
increase
them to reveal
and
in
the
in one
the right
him and
a
story
Sixth Amendis
the
the other,
on an
a newsman's
This
sources
carry equal
the
outcomes
privilege has
grants
been
immunity.to
allowing him the
law,
of
judged according
or confidential
as
witnesses
individual basis.
privilege
in court,
of an accused
to find
amendments
varied and are
issues
when enacted
fair
itself.
odds.
against
are
a
sources
the protection of confidential
superior
framework,
that
been a documented
First Amendment
other
of societal
conflict has
information reported
involving
courts
a
information so
reporters
Constitution at
on the
few years,
information
the
in many states.
newsman when
has
Because both of
the
last
gather
confront witnesses
favor.
a
sources
press
in his
to
but
press
granting confidentiality to
There
confidential
sources,
cases
to
subpoenas
conflict puts
person to
--
court
confidential
This
news
a
number of
and also
-
to
government,
the
in power.
Therefore,
and
the
Not only does
right
not
information.
are referred
to
as
3
-
About
reporters
26
states
from
have
revealing
passed
information and
the news-gathering process.
while
others
arc
based on the
journalists
deprives
causing a
p\lblic
--
in some
them otherwise.
by Maryland
in
1930s,
four
resulted during the
in the
1960s.
~ine
Seven
states
Nebraska,
Ne" York,
Tennessee
-- have
"ere passed,
additional
in 1973 to
from being
extend the
important
the
courts
passed
legislated in the
Illinois,
Oregon,
shield laws
shield
but
1940s and four were developed
-- Dela"are,
But
or qualified
la"s have been
shield law "as
shield laws "ere
Indiana and
that
identified
either absolute
The first
1973)
issues about
Rhode
since
since the
Minnesota,
Island,
1970.
and
(Council
original
statutes
court decisions raised
la" formulation.
Ne" Mexico
privilege to former
amended
their la"s
reporters
because
court decision "hich denied privilege to William Farr
because he "as
its privilege
1973)
as
many have been amended as
For example,
of a
people who have
instances,
North Dakota,
adopted
have been
information.
laws
have deemed
1896.
absolute
can mandate
to be absolute by those who drafted them,
of State Governments,
-
shield
for
are
in
"chilling effect" which ultimately
of essential
been misleading,
assumed
sources,
consulted
but all
government
who fear repercussions
Classifying state
has
if the
confidential
si1cnt,
the
laws
qualified or restrictive,
reveal
"ill remain
sources
Some of these
assumption that
information but
shield laws which protect
no
la"
longer
in 1971
a reporter.
to
account
California also
for
amended
that decision.
(Council,
-
Shield
the
state
law
legislation was
legislatures during
legislation drafted was
in
this
Congress
has
hearings
on tho
(Council,
than half of
than half of the
1973) The
this
increase
increase
in
according to conclusions made
Council
also considered
topic,
in more
but less
ocntributed to
effect,
by a 1973 study by the
1973,
adopted.
investigative reporting
enact'ing law of
introduced
of State Governments.
The U.S.
shield law legislation and held
although no federal
shield
law has
ever been passed.
Proponents of federal
grants
the
interstate
in this
federal
government
comrr:'lnications.
type
of
shield laws.
shield laws
is
law is needed
of a federal
that
the
to
made by those
this
in
state
shield laws
have
of federal
already
evidence
appropriate
dispose of press
shield
that
Congress
subpoenas,
to be
on the basis
courts be regulated under
clause would be unconstitutional.
held a
in favor
states
as
among state
for
the need
statute.
Some oppose federal
is not
serves
and protect
many say that uniformity
avoid conflicts
because half of the
legislation,
commerce clause
power to regulate
In addition,
Another argument
enacted shield
of evidence
shield law say the
Opponents
should use
the
also
the
the rules
commerce
contend that
a federal
especially since
a procedural right
that
law to
Supreme Court
rather than a
fundamental
right.
Court cases
,-
confidential
a
involving a
reporter's right
SOllrces or confidential
great many questions
including:
to
not reveal
information have raised
Whom,
exactly,
it
should the
5
shield law prolf'ct?
personal
protected and
to
~re
lives
wllat
For
journalists,
whose
often inseparable,
isn't?
and
Is
the
professional
what
and
information is
shield law vulnerable
abuse?
Shield laws
are not
the
are often criticized;
so often the
object of
interpretations of
repeatedly brought
state
criticism,
laws by the
light more
laws
courts.
loopholes
themselves
but more often
Courts have
in many of the
statutes.
Because of
laws
to
the
this
the
the uncertainty of the boundaries of shield
enacted by many states,
of whether or
not a
diversity among
history of
the
and examine
I
will
shield laws
the
laws,
I
will
attempt
the
to review the
review their original
also review many of the
have been put
analyze
the
a more
statute is needed to resolve
intent,
their purpose.
assuQptions
and
state
shield laws,
and the
tion,
federal
and also because of the question
to test,
cases
along with the
of judges who heard the
strengths and weaknesses
finally,
standard
adoption among
in which state
of the
propose some viable
cases.
or ultimately,
solutions
by the
I
present
shield law which could serve as
states,
outcomes
legis la-
for
a
will
creating
model
federal
for
govern-
ment.
HISTORICAL
OVER~IEW
Confidentiality and privileged communication
question of
the
law.
As
far
back as
confidential relationship
is not a
new
the reign of Queen Elizabeth,
between a
lawyer and
his
client
6
was recognized
~nd
British common
law also recognized an equivalent privilege
between husband
British pattern,
privilege
in the United States,
has
statutes
(Francois.
The
state
Maryland Has
-
~~~
in 1896
jail for
to
a
physician/patient,
first
and
following
source of
S t c. t e s
in
A number
significant
and
and
such as
informant/govern-
pending
26
~~l!l~£E~
involving a
indictment.
later,
state
of legal
of
tion
In most
cases,
sent to
Man y
to
proceeding.
(Steigleman,
over one-half of
0
f
the
a U.S.
26
law s
shield laHs
the
tv ere
196)
50
d r aft e d
provide
(1972).
journalists
protection against revealing
in fact,
a
p.
Supreme Court decision
information and confidential
testimony about
in any legal
privilege
John P.
sources
compulsory
reporter's
level.
information which allowed him to
Paul M.
~~aunt
federal
196) The reporter was
lirect response
the
privilege has
grand jury after the reporter refused
confidential
itself.
p.
than 91 years
at
a
incident
'u v e s hie 1 d 1 a H s.
enacted in
handed down
a
state to pass
(Steigleman,
more
these rela-
1978)
accurately predict a
Now,
1985)
even extended confidential
included relationships
contempt of a
to reveal
Un i ted
granted privilege to
by state basis rather than on a
the
reporter.
Pullen,
following much of the
statutory approach to news reporters'
been on a
statute
also
American law has
clergy/parishoncr,
ment.
(Overbeck,
and wife.
Legislation
tionships.
protected by law.
informa-
journalists are relieved
confidential
source of
from
information
7
--
About half
of the
shield laws
a qualified privilege rather
means
that
the
Hith the
to carry out
prior
to
is balanced
interest weighing <'-gainst
the
ability
test
in the
26 shield laws have made
in each of the
impossible for
a
it
justice.
Varying conditions
it nearly
This
privilege is not viewed as
interests but rather that
overriding public
today stipulate
than an absolute privilege.
news reporters'
superior to other
in existence
one
to
predict
its
judiciary process.
interpretation
For
instance,
in
1975 New Mexico's state Legislature passed shield legislation,
but
-
the
law was
declared unconstitutional by the
Supreme Court
oilly a year
!E£~~£~~l!~I'
Inc.
law was
an
in Ammerman v.
The
court ruled that
(1976).
"interference with
evidence."
appear as
later
(Gillrnor,
a
Barron,
Hubbard
the
shield
judicial prerogatives concerning
1984,
"strong" shield law or
legislation may
state's
p.
Hence,
402)
what may
a nearly absolute piece of
be substantially weakened or even obliterated
by the cot:.rts.
Shield
the
three
laKs have been typically categorized
following
seemingly eXCUS2
in any type
only apply
source
is
of
the
groups:
tions,
absolute privilege
a reporter from ever revealing a
legal
proceeding or
privilege
if
inquiry;
often alloHing the
certain circumstances.
2)
one of
laws,
news
laws
which
source
that
information derived from the
actually published or broadcast;
or limited privilege laws,
-
1)
into
Hhich may have
courts
and
3)
qualified
one or many
excep-
to disregard them under
(Overbeck,
Pullen,
1985)
A few
8
examples
of the
of
26
th0
Arkansas
or broadcast)
if it
teas
(Gora,
Indiana's
protect
in the
"the
1974,
p.
-
in the
of
"the
(the
information procured or obtained
reporter's)
employment" Hhether or not
This
state's privilege also
reporters.
identity of any
Hhile acting as
a reporter,"
court may
that
of
"fino
( G (l l' a,
the
1 9 7 4,
court may divest
the
is
essential
to
a
the public
245)
a
confidential
source
information obtained by a
stating that
a
the reporter of the privilege after con-
claim of defense,
available,
from another person
laH is conditional,
sideration of "nature of the
-
245)
p.
informant or any source of
privilege also protects
However,
1974,
a neHS reporter's privilege
disclosure
p.
(Gora,
except that after a hearing,
information or confidential
reporter.
in bad
interest of the public
information obtained by (the reporter)
Illinois'
(written
code extends the neHS reporter's privilege to
The Louisiana statute offers
interest."
article
244)
specifically to former
to protect
the
privilege
the privilege
published or broadcast
and not
source of any
course
the news reporter's
stipulates that
it was published or broadcast.
extends
illustrate the diversity
is demonstrated that
"Hritten,
Hith malice,
welfare."
shield law,
The statute
absolute.
may be revoked
faith,
to
shield laws now in existence:
In the
is not
varying statutes
if any,
the
proceedings,
the merits of the
adequacy of the remedy otherwise
the relevancy of the source,
possibility of establishing by other means
and the
that Hhich
it
9
.--
alleged
the
source requested will
court determines
tend to prove,"
"that all other available
sources
mation have been exhausted and disclosure of the
sought
is
This law is
reporter at
the
time
p.
244)
1974,
In Delaware,
or the
content
scope of his
the
information was
of information a reporter
professional
activities,
a
reporter
first
the
that
the
determines
mation confidential.
Other
is no
the public
~utwei0hs
testimony
state
shield law states
The
some
type
interest
the public
(Gora,
or implied under-
statutes
are
in having the
interest
1974,
less
and
p.
in keeping
the
26
infor-
244)
complicated.
(Gora,
judge
reporter's
Michigan's
"communications between reporters
confidential."
that
"the disclosure
longer privileged "if the
excerpts from a few of the
informants
1974,
p.
of news-
are
245)
state statutes
of reporter's privilege demonstrate
of the kinds
is
The second stipulation
papers or other pUblications and their
privileged and
allow
source" or would hinder maintenance
content
that
to
The first
an express
development of source relationships.
is
source
that during
under oath that
~,tate
information would violate
standing with
a
condition is required
the
a
gains within the
except
information to remain confidential.
lIlUC;!
interest
sought and obtained.
a reporter's privilege protects
the
of the
information
also extended to anyone who was
adjudicative proceedings,
-
of infor-
essential to the protection of the public
involved."
(Gora,
if the
of protection given to working
offering
the broad range
journalists.
10
,- -
Many still
laws because
enough to
courts
argue
tlle
that
there
is no need for
First Amendment
should be
state shield
interpreted broadly
However,
provide an absolute privilege to reporters.
to date
have not ruled
in favor
of this broad-based
interpreta.tion.
1972)
No federal
legislation has been enacted into
attempts were made
Branzburg case
has
adopted
States
The
--
is
a
The
a
a
subpoena
3.
fro~
to
is
subpoena to a
and
interest
the
confidential
a working reporter.
guidelines
a member of
sought
(Pember,
free
interest
strike a
dissemination
in effective
seek a
should be made
subpoena
to obtain the
sources before considering
issuing
the news media.
with the news media to
shall be pursued
negotiations fail
provide
the material voluntarily),
approve
the
subnoena based
to
information.
member of the news media
If the
attempt
in the
public
attempts
alternative
Kegoti~tions
tion which
4.
federal
when determining whether to
rc~sonable
All
information
public's
i~formation
and
journalist's
2.
the
Dr,partment of Justice must
law enforcement
for
Department of Justice
subpoena against
summary of
balance between the
ideas
the
in the
305):
"I.
of
Supreme Court ruling
However,
in 1972.
attorney can issue a
p.
the
guidelines which define when and how a United
following
1984,
following
law although
on the
(if
the
in all
is
gain the
cases
informa-
in which a
contemplated.
the reporter won't
attorney general must
following
guidelines:
11
a.
There must
press
The
as
springboards for
i~formation
successful
evidence of a
The department does not
source.
reporters
b.
be sufficient
crime from a non-
approve of using
investigation.
the reporter has must be essential
to a
investigation -- not peripheral or speculative.
c.
The government must have unsuccessfully attempted to get
the
information from an alternative non-press
d.
Great caution must be exercised with respect
for unpublished
e.
source.
to
subpoenas
information or where confidentiality is alleged.
Even subpoenas
for published information must be
treated
with care because reporters have encountered harrassment on
the
grounds
the
government.
f.
The
(Pember,
So,
that
information collected will be available
subpoena must be directed to specific
1984,
with
p.
information."
305)
this
government does
to
summary
equate
it
is evident that
some privilege to
the federal
confidential
infor-
mation obtained by reporters.
Since
there
is no real
privilege statutes
some
legal
consistency between reporters'
from one state to another,
precedents
set
through the
a
review of
last few decades
is
necessary to provide a framework from which an extensive
analysis of
shield law legislation can be
synthesized.
12
-
FARR V.
SUPERIOR COURT
This
case demonstrates
which can result
who
invoke
was
assigned
followers
them
to protect
to cover
for
the
murders
tile
restrictive or
trial
of actress
Pullen,
applied
the
so that
six attorneys
g~ve
Farr a
of a
had
the
intended
of the
to
torture
that
she
the
for
a
trial
was
special
tion to
Farr.
hearing
the
rest
by a
that Manson
confession to
of the
possible
show business
Manson
some
group \-Jere
to find
Farr was
summoned
satisfactory to
of
Judge
Charles
to divulge
the
but he refused on the basis
appeared
Later on,
judge,
and
At
this
point
in time,
the
his
a result
after the
Older,
called
informa-
source
of the
of
Cal-
Farr's
the
defense
judge.
Older summoned
information for
as
out \-Jho had leaked the
law.
to be
Herald-Examiner
from attorneys,
trial
ifornia shield
source
t\-JO of the
statement made
containing a
received
over,
"leaked" statement,
the
participants
statement detailed
story in the
information he
Manson
The
the
trial
a
for.
Farr published a
of
and
trial,
issued,
and murder numerous
in addition to
crimes
being tried
prosecution.
and many
content of any testimony given.
order \-Jas
for
Hilliam Farr \-Jas
Sharon Tate
restrictive
copy
journalists
During this
1985)
Cag order was
for
laws
of Charles Manson and his
this
\-Jitness
in shield
sources.
Although
celebrities,
-
loopholes
their
\-Jere barred from releasing
-
the
in serious repercussions
(Overb~ck,
others.
(1971)
Farr once
story.
At
again
the
to reveal
time
of the
13
second
summons,
Farr was no
Examiner but was
now a
special
judge's request,
investigator for
the Los Angeles
Farr again refused to comply with
County District Attorney.
the
the ~!E!!~=
longer a reporter for
although the
judge said that
the
California
shield law protected only currently employed reporters,
because he
refused to comply,
he was cited for
contempt of court.
Following this citation pronounced by the court,
was complicated even further,
which dragged on for more
court of appeals
the
state's
was
inapplicable
the
court's
shield law.
to
It
Farr's
no bi!siness
tu
control
1984,
304)
and went
facing
He
to
by both the
a
state's
California
shield law
law would
on to say that
The ruling
inhibit
an
"To construe the
Farr,
in
statute as
the face
granting
of facts
here present
interference by the
indefinite prison sentence for
Farr was
on an
legis-
inherent and vital power of the
(Pember,
the contempt
once again asked to reveal his
again declined to reveal his
jail
the
included the
its OHn proceedings and officers."
of court citation,
-
it went
to countenance an unconstitutional
court to
sources.
the
case because the
seek information.
state:D2nt:
Still
tactics
enacting policy which would prohibit a
legislative branch with an
p.
stated that
In fact,
immunity to petitioner,
would be
In 1972,
than 10 years.
case
control of trial participants and hinder the enforce-
judge's right
following
series of legal
the
issued a ruling which made an exception to
ment of its rulings.
lature had
with a
and
source of
indefinite sentence following
California and U.S.
Supreme Courts
information
refusals
to hear the
case.
14
Farr remained
l',carcerated for
California court
and ordered
There
of
appeals
are
two
vented
the
former
reporters.
issue
from
The
During Farr's
of whether
~!~
about
the
the
Times.
In
grand
the
citation
the
courts
courts
California shield law to prohibit
left
that
their reporting posts.
another amendment
law by the
legislature was
to
information or
made
to
indefinite
jail
sentences.
(1970)
!!~!~
reporter,
their clubhouse,
took notes
Cald~ell
Black
Earl
Panthers
Februar~
of
jury "hiC", Has
of
Caldwell's
notes
tile
where
about
gathered,
(FLlncois,
activities
the
added which stops
Caldwell was
covering a
confidence of Black Panther members
and
circum-
sidestepped this question,
they have
is
case which
Black Panther activity in San Francisco.
into
information
trial,
this
SOllrCeS after
the
interviews
to
to reveal
u.s.
story on the
allowed
contempt
reporters
!£E~
gained
before
shield law should protect
sentencing reporters
CALDHELL V.
had
the
Although the
second note
from
A
the
former
California shield
judges
of 46 days
interesting sidelights
forcing
confidential
-
judge ended
legislature revised the
courts
total
Farr's release.
should be mentioned.
the
a
he Hrote
and Has
subsequently taped
Black Panthers.
a
series
organization which
From the
of articles
then appeared
in
1978)
1970,
Caldwell was
subpoenaed by a
investigating the possible
Black Panthers.
and
he
CaldHel1
tapes,
The
federal
criminal
subpoena demanded
Hhich Caldwell
refused
to
supply.
15
The
reporter
also refused
contending that
would ruin his
his
to
even appear before
attendance
at
a
secret
the
grand
grand
jury,
jury session
reporter-source relationship with
Black Panther
members.
a~d
Caldwell
failed
to
tective
do
Times
so because
tried to quash
the
S l' C \ 1 red
the
questioning
1)
protections:
information about
mation he
the
a sap r
for
0
reporter didn't have
associations,
didn't have
concerning
stiltements made
to
him or
by members
of
closure .. . "
Another
Has
t hat
during
a
grand
cited for
CaldHel1
ling
p.
H0 u I d
hav e
The
granted to
stated
governmental
the
specified
offer any
sources
or
infor-
"anSlVer questions
such statements
or
ensure
t
quash
0
con suI t
that
the
modified subpoena
the
Court
,-I i t h
court
of
c0 uns e1
order Has
California
subpoena because of
the
CaldlVell.
and
for
urn ali s t
329)
Northern District
CaldlVell
contempt
0
publication or public dis-
bee nab 1 e
the motion to
to
to
granted by the
jury session to
judge dismissed
HOHever,
1978,
s;Jecial privilege
Cal d :' .. 1 I
pro-
information given to him
unless
given to him for
being folloHed.
"shield"
Black Panthers
(Francois,
j
The new order
of Caldwell.
he
information wer2
a
but
any unpublished
f e s s ion a 1
2)
the
and
subpoena,
subpoena greatly reduced
confidential
received,
request
C a I d ,,J e I I
The modified
to be divulged.
scope of
by
the
summons was modified to
order which omitted the
i n for milt ion
two
the
his
still
once
refused
to
obey
again appealed.
refusal
to
the
order.
One
of
testify lVas
that
interest had been sholVn by the
He Has
the reasons
no
courts
compelthat
16
-
would deem his
Cald~Joll
Hhen
the formal
continue
to pay
of
some
the
doubt
to
his
appeal,
step toward
r~~~
he did
to
1970,
Caldwell when
a
grand
the
viewed
following
the
it
to
a positive
extended newsmen's
The Times
qualified rather
gather news.
seemed to
turn
On Novemfavor
reversed
In an opinion written by Judge
statements were made
con-
to be
in the
of Appeals
sub-
than
into
government's right
right
tide
news
limited protective
The brief took
Ninth Circuit Court
decision.
I!~!!'
court decision.
reporters.
the
story,
case or "otherwise
jury investigation as
advocating a
a reporter's
however
to authenticate his
journalists since
curiae
M. Rosenthal, was
329)
balance between the
informed versus
the
p.
the paper
a memo directed to
integrity of
however,
the
privilege for
lower court
agree
than any prior
mitted an amicus
sideration a
not
it without
the newspaper did
The reason
fees.
itself from the
I!~!!,
shielding
privilege more
shielding
although
according
1978,
(Francois,
~!~
~errill,
I!~!!,
cast upon the
shield specified for
ber 16,
second appeal
legal
remove
may be
stories."
absolute
the
reporter will
paper had
I~!
for
this
and written by managing editor A.
staff
that when a
the
made
support of
backed out
the
testimony essential.
in defense
of
the
Charles
of
rQjl1rter:
The c;\ S e is 0 n e 0 f fir s tim pre s s ion and 0 n e in
which the news media have shown great interest
and h~ve accordingly favored us with briefs
as amici curiae.
The need for an untrammeled
press takes on special urgency in times of widespread protest and dissent.
In such times the
First Amendment protections exist to maintain
communication with dissenting groups and to
17
provide the public with a wide range of
information about the nature of protest and
(Francois, 1978, p. 330)
heterodoxy.
After reviewing the powers of
ne~
stipulated
grand
juries,
the
judge
reasoning:
Where it has been shown the public's
First Amendment right to be informed would be
jeopardized by requiring a journalist to submit
to secret grand jury interrogation, the Government must respond by demonstrating a compelling
need for the witness's presence before a judicial
process properly can issue to require attendance.
We go no further than to announce this general
rule.
Finally we wish to emphasize what must
already be clear: the rule of this case is a
narrOK one.
It is not every news source that is
as sensitive as the Black Panther Party has
been shown to be respecting the performance of
the "establishment" press or the extent to which
that performance is open to view.
It is not
every reporter who so uniquely enjoys the trust
and confidence of his sensitive news sources.
(Francois, 1978, p. 330)
Although
and details
tile
of
LtOH the
compelling need
the
opinion,
the
appealed
to
CaldHel1
cases
cases,
cases
for
the
However,
application of
which
government would
a reporter's
U.S.
in this
Supreme Court.
auld be
l'l
go
about
showing
testimony were absent
case Has not
The
joined with the
ar\' revieHed beloH.
folloHs
precedent was narrow
from
Fourth Estate believed it had won a victory.
battle
the
this
the next
over.
The
government
court decided the
Branzburg and Pappas
The resolution of
these
sections.
TIlE THO BRANZBUl\G CASES
Paul
~£~E~!l,
Branzburg,
~rote
synthesizing
a
a reporter for
story about
"~shish
two
the
Louisville
Courier-
unidentified people who Here
from marijuana
in Jefferson County,
18
The
Kentucky.
Barron,
story was
the disclosure
nessed making
The
names.
that
reporter refused
the
At
law was
outcome
trial
the
state's
wouldn't
this
court
the
time
court
law protected
Branzburg would
peop10
made
two
importa:l~
an
o~serving
from
sourcps
sources.
sources,
source
a
It
Bra n z bur g
0
source's
jury,
invoking the
case went
news
reporters.
that belief.
in effect
BranzburB's
sources
s t i l l be required
to
testify
including
he had observed.
interpretation,
This
the
identity
and
a reporter who received
assumes
that
to protect
obtain
to merely observing a
story about
the
information
identity of his
information from a
source's
illegal
behavior.
drug
users
which appeared on January
la, 1971,
nee
f
0
l' c1
then,
distinction between a reporter merely
Kentucky,
a
of
had received.
observed personally
After publiration of a
Frankfort,
reported
believed that
information which he
Kentucky reporter must
in addition
it was
had wit-
grand
Branzburg's
decision stating
In other words,
of the
the
decision dispelled
not
hact
that
~~r~~,
information but
he
the
the
stating that he was
issued a
shield
about what
reveal
an absolute privilege for
of
The
two people he
to appear before
refusal
law.
jury which requested
even though the article
~~~~~£~~~ ~~ ~~£~~
Kentucky's
grand
identity of the
the hashish,
shield
trial,
But
the
justified his
Kentucky
to
of
subpoenaed by a
Branzburg llUd promised he
and he
(Gillmor,
1969.
1984)
Branzburg Kas
that
published November 15,
in
0
un d him s elf the
sub j e c t
in
f a g ran d
"'jury subpoena.
tHO I-Jeeks
of
He
had reported
iIl~,_LvieHs
\lith
information he
several
obtained from
drug users,
and
the
19
Franklin County grand
identities
of
tho drug users
again refused
it
jury demanded that
to
oblige
His
~im.
sought from
the
he had
grand
argument
Branzburg reveal
to have
Amendment
wealth
his
freedoms
in the
(Francois,
interest ... "
absence
1978,
before
the
behind the
ness
as
drugs)
a
secret
grand
reporter
is
in these
areas
the protective
case,
Branzburg was
grand
jury about
ordered to
any criminal
its
T'10
any
the
the
cases
was
~uits
1 a.,' cas e s .
The
of
0
Res
He
supplemented
to
his
sale of
1978,
to
appear
go
effectiveillegal
p.
331)
in the
Caldwell
answer questions posed by the
activity he
observed,
confidential
but
it
sources of
had again
shield law which
grounded
in effect
First Amendment privilege to reporters.
Branzburg
Cas e s
and
order issued
state's
Bra n z bur g ,[ P pea 1 e d t 0
on these
jury room,
Kentucky Court of Appeals
interpretation of
rejected
331)
"is required
(use
did protect hiD from revealing his
informaticn.
an "incursion upon
(Francois,
totally destroyed."
Similar to
grand
subpoena quashed
shouldn't have
jury since he
closed doors of the
information
of compelling Common-
p.
argument by also claiming that he
the
the
claimed requiring him to testify would be
First
The reporter
spoken with.
jury with
the
issued by
were
verdict
1 \" cd. "
the
U. S.
Sup rem e
the nation's
coupled with two
is
included in the
Co u r t .
highest
A ruling
court after
following
shield
subsection "Trilogy
20
IN THE ~~!!~~
As
around
in
a
f~~~ f~ff~~
QI
the
case
of Earl
story about
30,
in Net,
1970,
a
New
Bedford,
Pappas was
In that
Bedford.
sa~
headquarters
city,
a
Black Panther
no police raid
the
While
police.
case centered
Pappas was
Mass.,
Pappas was
or heard except
by
Pappas
a
television station.
assigned to cover civil disorders
Black Panther headquarters on
anything he
the
Black Panther activity.
television neWSDan for
On July
Caldwell,
for
a
to
condition that he
enter a
not reveal
an anticipated raid on the
inside,
leader reading
allowed
Pappas
did photograph
Hotveve r ,
prepared statement.
on the headquarters
(Council,
ever occurred.
1973)
Following his
-
County,
Mass.,
grand
did appear before
events which
refused
and
to
using
chusetts
The
he was
grand
had
inside
the
court
the
Pappas
testify.
headquarters,
information was
as
struck down his
appear,
testify or
face
said
Bristol
about
but when asked
his
he
confidential
privilege because Massa-
shield legislation.
subpoenaed by
Supremo
a
Black Panthers headquarters,
First Amendment
Jl()
headquarters,
jury and answered questions
testify saying the
the
the
jury subpoenaed him to
the
refused to
state's
into
occurred outside
activitic~
about
entry
a
the
and
grand
the
contempt
Judicial
the
defense,
jury again,
this
court
"has
but
judge ruled
citation.
Court,
public
First Amendment
Pappas
\Vhich upheld
ruling
and
a
right
except
in "excel'tional circumstances."
Pappas
time he
had
appealed
the
to
to
the
10\Ver court's
to every man's
(Gillmor,
and
evidence
Barron,
1984)
21
.-
Another
important note
in this
it rejected altogether the U.S.
Caldwell
case,
and has no
to
anSwer
This
and
saying that
a
court's ruling
is
Circuit Court's ruling
newsman is
that
in the
like any other citizen
special privilege protecting him from an obligation
inquiries made by a
case was
resolved
Branzburg cases,
is detailed
in
grand jury or court order.
in 1972,
in a U.S.
the following
along with the
Caldwell
Supreme Court decision,
which
pages.
TRILOGY OF CASES RESOLVED
The Caldwell,
by the U. S.
-
et a1.
SUIJreme Court
Court
privilege
and Pappas
in Paul M.
This decision was
(1972).
Supreme
Branzburg,
on the
claim of
cases were decided
~E~~~£~E&
the first
reporters
to
John P.
v.
issued by the
a constitutional
against revealing confidential sources of
or confidential
information itself.
The reporters
information
lost their
battle.
The
reporters
before
a
nation's
were
grand
investigation.
not
highest court ruled,
exempted from
In other words,
state and federal
This
case
the boundaries
5-4 decision,
that
the normal duty of appearing
jury to answer questions relevant
infringed upon Khen reporters
In re VAN NESS
in a
the
to
a
criminal
freedom of the press
isn't
are called to testify before
grand juries.
(1982)
is
of particular
of California's
interest because
it defined
state shield law in application
22
-
.
to
freela~ce
ruling
The
writers .
stating tjat
the
California Superior Court
shield law doesn't
lancers who have not yet made
a
apply to those free-
contractual
agreement with a
publication or organization protected by the
words,
freelanccrs
sold to
begins
So,
a
are
news-~athering
only those
process
reporters who have
organization prior to
protected from subpoenas
(Pember,
sources.
is
a
story not yet
the reporter
susceptible
sold a
In other
law.
information for
publication or organization before
the
or news
who pursue
issued a
to
story to
gathering the
inquiry.
a publication
information for
ordering them to reveal
it
their
1984)
GARLAND -v. TORRP
(1958)
----
-------
Reporters'
In the mid-1950's,
cases.
libel
suit
against
Marie Torre
~1
ments
iss
to
too k a
privilege has
an
the
i n " TV - R a d i
(J'-.
source would violate
D~ring
to refuse
the
L.S.
to reveal
contempt of court.
was
released
based her
time
the
0
fro m Tor r e,
un~amed
in libel
Judy Garland brought a
in a
column by
published in the New York Herald-Tribune.
unnamed executive
d e p 0 sit i
identify
actress
CBS because of comments
which was
Tor r e,
also been questioned
source,
a
at t rib ute d c e r t a i n s tat e -
from CBS.
at
IV hie
h
Garland's
attorney
tim e Tor r e r e f use d t
contending that
revealing her
Court hearing,
she continued
identity of her source and was held
She was
sentenced to 10 days
in
jail,
on her own recognizance pending an appeal.
claim on the
First
0
confidence.
District
the
T 0 day ,"
First
Amendment,
which was
Amendment had been claimed as
a
the
but
Torre
first
shield of
in
23
Prior to
protection.
as
grounds
for
In 1958,
journalists used
the Second Court of Appeals heard the
abridge press freedom by
the
the
free
He
society but
courts
witness
to
history
just as
to obtain
could
testify and that
does
to
tration of
this
it
and must
is basic
concept has
is the
duty of a
deep roots
in
The obligation
freedom of the press.
the additional right
of a
litigant
the
court would not hesitate
the
in the fair
p.
adminis-
328)
in the matter of the
Torre had no right
to refuse to
columnist continued to do so.
Court decided not
Con-
court wanted Torre to answer
to be relevant
that
1978,
the
to rule
give place under the
interest
(Francois,
questions
were determined
although the
"must
a paramount public
justice."
judge ruled
Therefore,
upon First Amendment freedoms.
Since the
-
justice
society.
concept that
freedom of the press
stitution to
for
court
judicial compulsion of testimony without question
impinge
the
the
testify and
judge concluded that
that
the
limitation
armed with the power to discover
truth are also basic to free
of a witness
However,
argued that freedom of the press
He also brought up the
-
imposing some
freedom of the press was not absolute
be balanced.
to a
case and
attorney that forced disclosure of Torre's
upon the availability of the news.
said that
common law
their defense.
agreed with Torre's
source might
this case,
to hear the
case,
suit,
answer,
The U.S.
so Torre was
the
Supreme
incarcerated
a period of 10 days.
It is
say that
interesting to note
if the news
source was
that
in this
case the
of doubtful relevance
judge did
to the
.-
case or
if an
attempt was being made
of a newspaper's
confidential
to require many disclosures
sources,
that he would have con-
sidered a different ruling.
CAREY v. BRITT HUME (1974)
----- - ----- - - - The decision in this
privilege
of a
to
libel
The
shield a
in 1974 and the
into consideration the
the Garland case
court
Branzburg and
in 1958.
that
the filing
The
reporter for
decision yielded
into UMW finances.
in
conclusion
confidential source
1978)
The
who was
a
story reported that
Carey had removed some documents
United Mine Workers of America office
government probe
a
the
story by Britt Hume,
columnist Jack Anderson.
plaintiff Edward L.
given
the circuit court decision
(Francois,
The action arose from a
three-judge
Supreme Court opinions
a newsman must divulge
in certain circumstances.
a
First Amendment
suit.
in Times-Sullivan,
-
a
confidential source following
suit was decided upon
court took
by the
case ruled against
from his
supposedly to frustrate
According to
the
story,
the plaintiff then complained to police that a box which was
supposed to have contained the
documents had been stolen by
a burglar.
Carey
story.
filert
Hume
a
lawsuit alleging he had been libeled by the
claimed the
information for
the
story had been
obtained from eyewitness observations by Casey's
-
However,
Hume
refused to reveal
With these facts,
Appeals.
the
case was
the
sent
co-workers.
identity of his
to the U.S.
sources.
Court of
25
The
the
in the
case cited the
court had balanced the
mount
The
judge
public
interest
judge went
cite Garland,
on to
which
in the
reveal
the
the
the
interests as
court ruled
that
it has
a
to
continuing
Court does not
important.
the news reporter must
the names of sources who supplied information on which
allegedly defamatory story was based where
were and where
of the case.
-
the Supreme Court continues
implies that
had no other reasonable means
is
administration of justice.
inference that
consider a defamed person's
Therefore,
fair
say that
the
noting that
freedom of the press against a para-
strongly
relevance and negates
Garland case,
of finding out who the
identification was
The
judge also
especially essential
malice" hurdle
the plaintiff
crucial
added that
if plaintiffs
imposed by the
Supreme
sources
to deciding the fate
identification of sources
are to overcome the "actual
Court as protection for
the news media.
CALIFORNIA v.
This
his
LUCAS
case
(1986)
is a recent example of how a
own course of action to determine
In California,
contempt
of 1986 after using an unusual
The
chambers
judge chose to
and after
KG TV news
to
judge dropped a
staff in November
approach to determine his ruling.
interview the TV journalists
interviewing them,
journalists possessed no confidential
be useful
shield law protection.
a San Diego Superior Court
citation held against
judge can devise
the defendant
he
in his
concluded that
the
information which would
in an attempted murder case.
"----"
26
-..
J. H.
Steve
Augus t,
a
Fiorina were
David Allen Lucas,
KGTV as s ignment ed i tor,
subpoenaed after the
was
indicted for
in January 1986.
Lucas had
because he
sought
information the
attempting
to find
out
the
1986,
stabbing a
station had
to
the
case,
Seattle woman
subpoenaed
gathered
identity of an anonymous
in
caller
"murderer's"
two
journalists refused to answer
asked during a
address.
and for
that reason,
tempt of court.
Amendment right
weighed the
the
law to withhold
the
journalists for
judge said Lucas'
to confront all witnesses
right
confidential
in February
San Diego Superior Court
In the ruling,
journalists'
some questions
preliminary hearing
who presided over the hearing cited the
-
in the
Against TV Net-Jsmen Lifted," 1987)
("Contempt
they were
defendant
Fiorina and August
who had tipped off the reporters
The
and reporter
under the
judge
con-
Sixth
against him outCalifornia shield
information which had been
unpublished.
The reporters were not
judge delayed
tl1C
procedure until
A ruling from the
of
the
lower
material
shield
source names
-
his
The
two
because
defendant was not
or unpublished
against
the
echoed that
that
the
protected by Cal-
it would not
information.
the
appealed.
court concluded
legislation because
its decisicn to rule
because
the
however,
San Diego Court of Appeals
court's ruling.
sought by the
ifornia's
sentenced,
The
disclose
court also said
journalists was reinforced
it decided that August might not have been acting
professional
capacity of a
journalist when he
gathered
in
27
the
information in question.
Acco:::-ding
to the
court,
law protects
a
journalist's activities
informant
a
private investigator acting to assist
en f
0
or
r,c em e n t . "
("Contempt,
After staying the
Supreme Court
where
the
request
suit
by
the
side
a
either a
The
journalists,
few weeks,
chambers
following
a
citizen/
law
19)
the
case back over to the
originated.
two
p.
as
shield
judge
-- without
California
trial
November,
court
upon a
interviewed them
attorneys
for
either
in attendance.
The
a
1987,
order for
turned the
privately in his
-
"No authority under the
judge
agreed that
waiver of protection"
guards
reporters
the
under
interview "Hould not
the
constitute
California shield law,
from being forced
to reveal
which
confidential
sources.
Following
reporters
the
interview,
didn't have
strengthened Lucas'
de~ense
by the
any
to revieH the
would remain sealed.
case
grand
to the
request
of the reporters'
saying that
if the
the two
could have
judge also denied a
transcript
HOHever,
that
case
the
is
appellate
transcript
appealed,
the
court.
(1985)
involves
language newspaper
state's
The
judge,
transcript will be available
This
judge decided
information which
defense.
private hearing with the
THE AVILA CASE
the
the publisher of a weekly Spanish-
in Union City,
N.J.,
and how he
used the
shield law to protect him from testifying before a
jury.
(Garneau,
1986)
28
-,
In 1985
the
investigation
grip on the
by the
the
to
N.J.,
prosecutor announced an
that organized crime held a
local Union City government.
into rumors
A grand
investigate the
that
accusations
organized crime was
part of
look
the
grand
into the role
and
trying to
It Has
jury's investigation that
of publisher Rene
language newspaper -- Avance --
firm
jury convened
city's police chief removed from office.
through this
began
into allegations
prosecutor began to
also check
have
Hudson County,
Avila's
it
Spanish-
in connection Hith organized
crime and Avila's relationship with an alleged Cuban organized
crime figllre.
The
-
grand
jury wanted to question Avila about his
~ith
relationship
another Cuban,
a reputed leader of Cuban organized crime and
who was Hell knoHn as a
Through court-ordered Hire
Avila helped
the
jury decided to
However,
Avila
He
the
also
Avila's
defense
for
-
journalist
cluded that
24
hours
the
law after Avila was
included
relationship with members
a
day.
and
tried unsuccessfully to
shield
not
jury learned that
the
grand
NeH Jersey shield law and the
quash the
ordered to
he refused to anSHer questions
identify his
arsument
grand
testify about his relationship.
the
grand jury,
and even refused to
laH as his
invoked
the
gambling operator.
Cuban godfather,
subpoena him to
Citing the
appear before
taps,
cause of the
First Amendment.
subpoena.
personal
OHn voice on tape.
that he could use
ansHering questions
the
shield
about his
of organized crime because he
For that reason,
shield laH not
only protects
is
his
defense
the
sources of
a
con-
29
his
stories but
The
also
New Jersey
to divulge
a
all
shield
"source,
through Hhom any
matioh obtained
of his
author,
the
the
adequate
he
\J
-
grand
a s n 't
the
jury finally
U II
lature's
invoke
alloHed
the
close
The
its
the
appeals
court
interesting precedent
another
~roup
Hhich had not
didn't meet
the
one
of
g ran d
crime
infor-
(Consoli,
involved
shield
decision
laH as
it
close
The
ties
shield law,
strongest
--
since
grand
betHeen
the
Legis-
which Has
in the nation.
case
extended the
of publications
life.
testify
and called for
in this
in the Avila
personal
to not
1986)
j u r y i n v est i gat ion
the
state's
the
in that
"neHs or
illegal activity.
scrutiny of the
to be
Avila
concern about
and organized
considered
papers,
any
disseminated."
to
never charged Hith any
publisher Avila
laH to
gained or
sources Here
e t a r get e d i n
expressed
refuse
of pursuing his professional
is
able
to
agency or person from or
protection from testifying about his
jury also
once
it
confidential
publisher was
The
and Has
means,
course
activities Hhethcr or not
case,
law permits reporters
information" Has
in
And although no
social relationships.
also
set
state's
an
shield
free-circulation
formerly been protected because
they
legislative definition of neHspapers.
STATE RULINGS
Although most
by federal
granted
courts,
rulings
at
journalists a
statutory
shield
in
least
shield laH cases have been
seven state
supreme
courts
issued
have
qualified privilege even though no
laH existed
in the
state
in Hhich the
cases
30
,-
Here
.
First
tried .
(Overbeck,
In 1977
the
Pullen,
IOHa Supreme Court recognized a qualified
Amendment privilege for
Although the
stories about
a
three-part
the
test
press,
provides
that
information
proceeding didn't
the
in
of
1)
of
the
and
3)
the
In the
end,
the
test had been met,
reveal her
sources.
qualified
other than
to
some
have
degree
One example of
so
Iowa have
lawsuit
inherent
this
un de r g r
0
wanted
to
involved
the reporter was
type
find
source
said
narcotics
officers.
Pullen,
the
ordered to
also recognized at
least a
and
some
privilege
in their own state constitutions.
of ruling exists
out
the
u n d n c \; spa per rep 0 r t e r 's
anonymous
suit;
(Overbeck,
Z e 1 e nl~ a
in a
case decided
v.
case resulted from a drug-related murder
defendant
the
even determined that reporters'
by the Wisconsin Supreme Court,
This
information
Constitutional privilege for reporters,
state courts
is
confidential
Iowa Supreme Court decided that
three-part
States
the
information in
isn't determined to be patently frivolous.
1985)
to
suggested test
the matter" of
gathering the
question have been exhausted;
-
The
to divulge
a civil matter unless:
other reasonable Hays
turn out
judges Hho wrote
Branzburg case.
to the heart
several
court basically adhered to
a reporter can refuse
in question "f,oes
2)
case resulting from
suggested by
dissenting opinion in the
in ~i~~~!E~ !~
neHS reporters
libel
long divorce
bea victory for
the
1985)
in which the
identity of a
s tor y .
In the
source for
story,
the
the victim had been cooperating with
an
31
In its
right
decision the
court did say that
to withhold confidential
be weighe( against
the defen(ant had not
the
strengthened his
reporter'~;
contention that
(Overbeck,
confidenti.al.
In New Hampshire,
ruling.
wouldn't
their
ruling
that
However,
opposed to
1985)
the
Hampshire
(1982),
student
alleged
involvement
Supreme Court upheld
sources
for
the
a
for
in drug
lower court
state supreme courts have been adamantly
Idaho Supreme
(1977),
a
civil
journalists
libel
suit.
runnin~
Michael
Caldero,
paper's
story during pretrial discovery,
from the
in Caldero v.
The
supply it.
contempt
The
identity of a
The defendant,
the news-
the newspaper
state's supreme court
citation against
Tribune
shooting a
source for
but
a
suit was brought
scene of a minor crime.
wanted the
to reporters.
Court refused to recognize
suspect
lower court's
journalists
story wouldn't
a newspaper criticized a police officer for
refused to
similar
judge's ruling.
some
the
in a
court documents revealing sources
First Amendment privilege for
after
identity should remain
New ~~~£~~i~~ !~ Siel
the victim's
~cw
source
court upheld the
granti.ng any First Amendment privilege
For example,
f~~li~~i~£
the
the source's
identifying the
have altered
so
two University of New Hampshire
story abollt
The
identity of the
another case also resulted
turn over to the
dealing.
the
defense,
Pullen,
The murder case,
occurred after
information to
state supreme court ruled that
shown that
would have
journalist's
information had to
the defendant's need for
However,
defend himself.
sources of
a
upheld a
the reporter.
32
The
which,
It
Caldera suit was noted for
in effect,
the
language
in the ruling
condemned granting a privilege to reporters.
stated in part:
In a society so organized as ours, the public
must know the truth in order to make value
judgments, not the least of which regard its
government and officialdom.
The only reliable
source of that truth is a press
which is
free to publish that truth without government
censorship.
We cannot accept the premise that
the public's right to know is somehow enhanced
by prohibiting the disclosure of truth in the
courts of the public.
(Overbeck, Pullen,
~985,
]J.
213)
-
33
A~ALYSIS
AND CONCLUSIONS
The freedom of the press would be extensively compromised
if it did not
include the right
to disseminate
it.
Therefore,
to
gather information in order
there must be an inherent right
to.a confidential communication network between a reporter
and his
I
sources
believe
implied in the
that
Constitution's
a reporter has
a constitutional right
to a confidential relationship with a
underlying premise that society has
the full
and free
addition,
flow of
democratic
society;
part of the
is
therefore,
survival
inherent
of a free
in the
to shield reporters
confidential
press
I
any
clause
for membe=s
do not
the
free
press becomes
And,
in
of
an integral
society.
proponents
for
protective
wish ultimately that
First Amendment be necessary
from disclosing confidential
longer.
in
a
First Amendment,
information.
issue,
realistic
in
one of the most prized ideals
no legislation outside of the
on the
a broad interest
information to the public.
along with many of the
measure
source resulting from an
choice based on the wealth of information available
to well-informed citizens
I,
First Amendment.
However,
and
in light of court rulings
see that viewpoint
The Caldwell
sources
as plausible or
case proved that
First Amendment doesn't
of the press who receive
the free
guarantee
immunity
information from sources
in confidence.
In fact,
R.
White
Hayes),
in the majority opinion written by Justice Byron
in the
the
Caldwell case
court
implied that
(Paul M.
it might
Branzburg v.
Judge
impose more restrictions
34
--
on the press
in future
decisions by claiming that
have no privilege different
(Brenner,
Rivers,
1982,
p.
reporters
than those "of all other citizens."
65)
We see no reason to hold that these reporters,
any more than other citizens, should be excused
from furnishing inforation that may help the grand
jury in arriving at its initial determinations
Newsmen have no constitutional right of access
to the scenes of crimes or disasters when the
general public is excluded, and they may be
prohibited from attending or publishing information about trials if such restrictions are
necessary to assure a defendant a fair trial
before an impartial tribunal. (Brenner, Rivers,
1982, p. 65-66)
Thus,
a
because the
Supreme Court has
ruled against
First Amendment privilege for reporters,
federal
statute protecting reporters
fidential
sources
added to federal
In 1972,
and
confidential
I
believe
from revealing con-
information should be
law books.
following
the ruling
in the
Branzburg case,
congressmen introduced 28 bills which drafted at
qualified privilege to news
24 bills
of this
a
type were
reporters,
introduced.
and
least a
in 1973,
However,
another
because of the
diversity of the bills drafted by a myriad of media and
journalistic orEanizations,
no federal
legislation was
ever
passed.
The bills
considered,
which ranged from those providing
a qualified privilege to those which offered an absolute
privilege,
--
brouGht up the
every person who has
tried
same questions which have
to
formulate
a
plagued
shield law which
would provide maximum protection while guarding against
35
--
potential
abuse.
Perhaps
shield law
the first
is
deciding who,
privilege chat allows
confidential
shield laws
with radio
federal
determination in formulating
and
complete protection for
television journalists.
so general
There
is
it would not
as
to
include
the
generally to
gathering of news,
any person who
public.
(Brenner,
and some
gathers
Rivers,
locturers and book authors alone,
The Avila case
1982,
but
give much room for
p.68)
freelance
it would
in
abuse by individuals.
is a strong example of this potential for
Avila claimed and received protection under the
New Jersey shield law although Avila had close ties
leader.
stemmed from a
than a professional relationship,
ifying before
a
with a
And although Avila's connections with the
Cuban organized crime leader
that
information
any person who had an interest
public affairs and would
Mafia ring
along
a danger with such a broad definition because
provide protection for
Rene
and the
Many state
include underground newspaper personnel,
news writers,
abuse.
source
Some of the proposed
legislation extends the protection more
for disseminatiull to
-
a
that privilege to newspaper reporters,
people directly engaged in the
are
federal
exactly should be granted a shield
information provided by that source.
grant
a
he was
grand jury because his
since Avila was
a
social rather
shielded from test-
lawyer argued successfully
journalist 24 hours
a
day,
all his
relationships were protected.
-
Although the
abuse,
law must be
strict enough to
guard against
it must be open enough to protect freelance journalists.
36
-.
However,
I
would
suggest
that
a privilege for
freelance
journ-
alists be qualified with a clause requiring they be non-fiction
writers who must have previously published with recognized
news
organizations.
prevent
situations
This
type
such as
of a
the
Van Ness
freelance
reporter was
he had no
contractual agreement
sought
in the
shoul~
be
denied a
case,
prior to
gathering
I
would advocate
covered by a
a more
shield law by limiting protection
organizations
which are recognized by the
legitimate
this manner
news
definitely make
press,
the
affiliated with legitimate news
should
organizations
underground press,
are,
the
but
to
the
of
the
capacity as
specific
and
independent
a
journalist.
than that because a
mild stipulation would weaken the
Avila case.
reporter
would word
the
is
acting
law no
judge would have
to make
circumstances under which a
obtained confidential
in the
I
clause
include allowing an
shield law only when a
determination on the
journalists
evident
shielding the minority
law should be drafted with a
invocation
final
should also
writers who have published work prior
journalist's protection to
a
it
student press,
limiting a
more
A bill
story in question.
In addition,
in his
public.
specifically outline what
specific reference
non-fiction freelance
to the
information
strict definition of
gatherers
i~
in which a
reporter's privilege because
to those news
drafted
is necessary to
case.
Therefore,
who
clause
information;
potential for
however,
the
this
abuse
37
,,-
There
is
another
issue to be addressed within the
question of who should be able
to claim shield law protection.
I
shield law include a provision
think it
is
to protect
essential that
a
former reporters who
are called to reveal
fidential
source or confidential
they were
employed as
information obtained while
a reporter.
The Hilliam Farr decision is
type
of clause within a
Angeles
to
-
a con-
an example of the need for
shield law.
In the
District Attorney argued that
Farr case,
this
the Los
Farr should not be able
claim shield law protection because he was no longer
employed as
a reporter.
contempt of
court and spent 46 days
punishment
for
For that reason,
Farr was held in
in prison -- not
a reporter who was prtecting his
a
just
confidential
source of information.
The
second major decision to be made in formulating
shield law is
by such a
outlining what
statute.
for confidential
limited in
that
information should be protected
Some state
shield laws provide protection
sources only.
it gives
This protection is
if the
far
too
no protection to confidential
information either published or unpublished,
too limited because a
a
confidential
and
it also
source might be
information revealed is known only to one
is
identified
specific
person.
A good shi01d law must not only protect confidential
-
sources of
information but also
it has been published or has
the
information itself whether
remained unpublished.
of having sources of published
The necessity
information absolutely shielded
38
is
evident
from the
Farr and Caldwell cases.
had been ordered to reveal
Both reporters
sources of unpublished
and both adamantly refused,
information,
and both were cited for
contempt
of court.
Confidential
sources of unpublished
must be protected.
Television reporter Paul
to reveal what he had witnessed
quarters
inside
although he never I1rote
been allowed
information also
inside on the
a
a
Pappas was
ordered
Black Panther head-
story on it but had only
condition that the
events
he
witnessed remain confidential.
Another
reporters
held
confidential
case.
case which displays
case,
information in
the
contempt
coercion,
I
don't
HOl1ever,
be
citation,
to a
levied against
source,
is
the Lucas
Reporters,
judge only so that
them as
a method of
when they offer con-
they offer it absolutely;
case
a prime example of the reason reporters
determined that
would have helped the
Although not
as
in a
they had no
accused man
essential
published and unpublished
clause
as
strengthen his
I
information which wasn't
judge
defense.
protecting sources
information,
the
should
information which
of
would also recommend
shield lal1 which would also protect
and unpublished
therefore,
should have violated their confidence.
granted privilege in criminal proceedings because
in this
a
is
finally revealed confidential
a private hearing with the
think the reporters
this
refusing to reveal
criminal trial
the reporters
would be dropped.
fidentiality
precarious position of
in contempt of court for
information in a
In this
the
obtained
published
through
39
confidential
shield,
additional
ment
communications.
officials
The reason I
which could be qualified,
could force
in dissident
implicate
political
qualified privilege could be
having to
provp
confidential
The
that
it has
aspect
of
examined when developing
is which legal
actions
Some .. ould have
federal
a
grand
a
a
stipulated by the
and
lower level.
it
to be
ultimate form of legislation
should be
covered by shield laws.
only in
however this
fails
also fails
to
are
include
trial
courts
they could still be ordered to divulge
or any other
legislative or executive body which has
issue
state or federal
conflict about being forced
information began with federal
Caldwell
juries with the
resulted
At
case,
but
Pappas
in contempt
first,
grand
jury
the
contempt citations.
Th origilldl
in the
at
protected only during
information by a
to
to
subpoenaed to testify before a
confidential
power
-
the non-
shield law which needs
If reporters
trial proceedings,
The
government
compelling need for
criminal court proceedings;
jury,
who parti-
seeks.
a~
who are
govern-
or riots.
shield law protect reporters
protect reporters
that
individuals
demonstrations
a
information it
third
is
this
the media to release photographs
or film outtakes which could
cipate
suggest
it
and
grand
Branzburg cases,
for
a proposed federal
it
juries as
spread quickly to
citations
extremely unfair because
to reveal
allows
is evident
state
grand
both of which
the reporters
involved.
shield law might
a reporter to
seem
exercise
40
a privilege not available
attorneys
to ordinary citizens.
and psychiatrists have
they cannot
be
forced
special privileges
to divulge
any
in confidence by their parishoners,
even
if the
activity
reporters
state or federal
to protect
the
invoke a
legislative,
sources
and
in that
clients and patients
Therefore,
should be able to
clergy
information given them
information relates directly to a
including murder.
However,
it
is
criminal
imperative that
shield law during any
judicial,
or executive agency
information which he has
promised
will remain confidential.
The fourth
aspect of shield law formulation
include privilege
libel cases,
I
in libel suits.
not
a reporter
And as
or even in a
reporter
an eyewitness
part
test
that
relates
to
of all,
the
possible ways
exhausted;
by the
court
suits
to determine whether or
in a
libel
investigation where
crime,
I
propose a
the
three-
judges who wrote the dissenting
In this
test,
it
is
qualified
information in any civil matter
the
information in question directly
heart of the
of
and
a
in libel
not be ordered to reveal confidential
sources cr confidential
first
to
Branzburg case.
a reporter will
unless:
guide
criminal
offered by the
opinion in the
a
should be granted privilege
proceeding,
is
Because of the nature of
believe a reporter's privilege
must be qualified.
should
suit;
gathering the
lastly,
that
that
all
other
information sought have been
the
to be frivolous.
secondly,
lawsuit
(Overbeck,
isn't determined
Pullen,
1985)
41
Through this
type
of a
test,
Britt Hume probably wouldn't
however,
the
cannot be
end up
clause should also
jailed for refusing
An alternative might be
swearing to the
cases
truth of the
about
a
this
There
option,
but
to have
-
a
source
sign an affidavit
provided which
libelous
information about
federal
officials and those
a
confidential
source or confidential
a
source under
that condition,
reporters
them,
and
in political
any longer.
undoubtedly not
Subsequently,
threat of officials
they will
no longer seek and publish
important
information gathered from confidnetial
This will
ultimately lead to
on a
a
not be published,
impaired.
or sources
valuable
can rely
information will
and the ability of a democratic
to make well-informed,
sources.
self-censored press.
when neither reporters
shield of confidentiality,
arably
to reveal
contempt of court and possibly incarcerate
futhermore,
Therefore,
shield
information offered by
sources will
then will be deterred by the
to cite them for
person.
a
important consideration
to legislate a
trust reporters
libel
from providing
office hold an unchecked power to compel reporters
be willing to
a
journalists
it would deter sources
if governmental
sources.
of the reporter unless
and definitely a most
reporters,
journalist
information he has
when proposing whether or not
for
the press,
to reveal confidential
is much division among
journalist with false,
Finally,
a victory for
include that a
would remain sealed in the ~ands
suit resulted.
such as Garland and
society
responsible decisions will be
irrep-
BIBLIOGRAPHY
Brenner,
and William L. Rivers.
f£~!!!£!!~~ IE!~!!!£~! !~ ~~~i! Law.
State University Press, 1982.
Consoli,
Daniel L.
John.
IE~~ ~~! ~~~~!!!~~:
Ames,
Iowa:
Iowa
"HoH Can Shield Laws be Protected From Abuse."
Vol. 119 (Oct. 11, 1986) p. 52.
I~!!£E ~ f~~!i!~~E'
The Ne t-J sHe d i a and the
"Contempt Ag a ins t TV Ne Hs men L i f ted .
Vol. 11, No.1 (Winter 1987)-~~.-I~=2~:--Law.
It
Council of State Governments.
~~i~!~ ~!~!: ~ ~~E£E! £~
Freedom of the Press, Protection of NeHs Sources, and
!E~-Q~Iii~!I£~ !£-!~!!III:--L~xington~-Kent;cky7 Council
of State Governments, 1973.
Denniston, Lyle W.
I~~ ~~E£E!~E !~~ !~~ LaH.
Hastings House Publishers, 1980.
Francois, William E.
Ohio: Grid, Inc.,
-
Garneau,
George.
~!!!
~~~i!
LaH and
NeH York:
~~~~!!!!£~.
Columbus,
1978.
"Is the Shield LaH Vulnerable to Abuse."
Vol. 119 (Oct. 11, 1986) pp. 12-37.
I~!!£E ~ f~~!i!~~E'
Gillmor, Donald M. and Jerome A. Barron.
Hass Communication
---------------LaH:
Cases
and
Comment.
St.
Paul,
Hinnesota:
West
--- - - - - - - - - - - - - - - PublishinE Company, 1984.
Gora,
Joel H.
I~~ ~i~~!! £! ~~E£E!~E!'
Toronto,
Clarke Iruin & Company, Ltd., 1974.
Canada:
Overbeck, Wayne and Rick D. Pullen.
~!i£E fEi~£iE!~! £!
~Ie d i a La Vi •
NeH York: Holt, Rinehart and Winston, 1985.
Pember, Don R.
Mass Media
LaH.
---- --Brown Publishers, 1984.
Steigleman, Walter A.
IOHa: Hilliam C.
-
Dubuque,
IOVia: William C.
I~~ ~~~~E!E~E~!~ !~£ The
BroHn Company,
1950.
LaH.
Dubuque,