The First
Amendment and
Press Shield Laws
Paul C. Watler
Jackson Walker LLP
pwatler@jw.com
The First Amendment and Press
Shield Laws
Freedom of the press under the First’
Amendment
• Does the First Amendment
include a privilege for
journalists against
compelled testimony about
news sources or news
gathering?
The First Amendment and Press
Shield Laws
A.
Freedom of the press under the
First Amendment
A guarantee of freedom
of the press was included
by the Founders in the
Bill of Rights
“Congress shall make no law …
abridging the freedom … of the press”
The First Amendment and Press
Shield Laws
“Congress shall make no law … abridging the
freedom
of the words
press” mean in the law?
What do… these
http://www.youtube.com/watch?v=eeVrzrmgitQ
The First Amendment and Press
Shield Laws
1. No
prior restraint
• Drafters
of the Bill of Rights embraced
the notion, derived from William
Blackstone, that a free
press may not be
licensed by the
sovereign, or otherwise
restrained in advance
of publication
The First Amendment and Press
Shield Laws
• “Chief
of the free press clause is “to
1. No
prior purpose”
restraint
prevent previous restraints upon publication.”
–
Near v. Minnesota (U.S. 1931)
• “Any system of prior restraints of
expression comes to this Court
bearing a heavy presumption
against its constitutional validity.“
– New York Times Co. v. United
States, U.S. 1971 (Pentagon
Papers case).
The First Amendment and Press
Shield Laws
2. Limits on defamation liability
• Supreme Court “constitutionalized” libel
law as applied to the press in New York
Times Co. v. Sullivan (U.S. 1964)
– “Central meaning” of the First
Amendment: A “profound national
commitment” that "debate on public
issues ... [should be] ... uninhibited,
robust, and wide-open."
The First Amendment and Press
Shield Laws
2. Limits on defamation liability
• “Constitution prohibits a public official
from recovering for [libel] relating to
his official conduct unless he proves
that the statement was made with
'actual malice' — with knowledge that
it was false or with reckless disregard
of whether it was false or not.”
– New York Times Co. v. Sullivan
(U.S. 1964)
The First Amendment and Press
Shield Laws
B. The First Amendment and
• Does the First Amendment include a privilege
Reporter’s
Privilege
for journalists
against compelled testimony
about news sources or news gathering?
The First Amendment and Press
Shield Laws
• Journalists subpoenaed to testify before grand
Branzburg
v. Hayes (U.S. 1972)
juries.
• One of the cases involved a reporter refusing
to disclose the identity of confidential sources
to a grand jury.
• Reporters contended that they were shielded
by a privilege under the First Amendment.
The First Amendment and Press
Shield Laws
• Justice Byron White framed the
Branzburg
question: v. Hayes (U.S. 1972)
“The issue in these cases is whether
requiring newsmen to appear and testify
before state or federal grand juries
abridges the freedom of speech and
press guaranteed by the First
Amendment.”
The First Amendment and Press
Shield Laws
•Branzburg
“Without some
protection
for seeking
v. Hayes
(U.S. 1972)
out the news, freedom of the press
could be eviscerated.”
• However . . .

“We perceive no basis for holding that the
public interest in … grand jury proceedings
is insufficient to override the … burden on
news gathering … from insisting that
reporters, like other citizens, respond to
relevant questions … in the course of a
valid grand jury investigation or criminal
trial.”
The First Amendment and Press
Shield Laws
Branzburg v. Hayes (U.S. 1972)
But Justice White left the First Amendment
• “[G]rand jury investigations if instituted or
door
slightly
ajar.
conducted
other
than in good faith, would
pose wholly different issues for resolution
under the First Amendment. Official
harassment of the press undertaken not for
purposes of law enforcement but to disrupt a
reporter’s relationship with his news sources
would have no justification.”
The First Amendment and Press
Shield Laws
Branzburg v. Hayes (U.S. 1972)
• “IfJustice
the newsman
called upon to give
Powell’sisconcurrence
information bearing only a remote and
tenuous relationship to the subject of
the investigation, or if … his testimony
implicates confidential source
relationships without a legitimate need
of law enforcement, he will have access
to the court on a motion to quash.”
The First Amendment and Press
Shield Laws
• Recognized First Amendment privilege
Branzburg
v. Hayes (U.S. 1972)
• “IJustice
would hold
that thedissenting
governmentopinion
must (1)
Stewart’s
show … that the newsman has information that
is clearly relevant to a specific probable
violation of law; (2) demonstrate that the
information sought cannot be obtained by
alternative means less destructive of First
Amendment rights; and (3) demonstrate a
compelling and overriding interest in the
information.”
The First Amendment and Press
Shield Laws
• Four dissenters plus Powell’s concurrence
Branzburg v. Hayes (U.S. 1972)
all found First Amendment support for
some form of a reporter’s privilege.
• Created an apparent majority for a First
Amendment privilege.
• Or at least, that was the face of Branzburg
in many lower court decisions during the
next two decades.
The First Amendment and Press
Shield Laws
Post-Branzburg
• Branzburg
recognized
gathering
Zerilli v. Smith,
656 F.2dnews
705 (D.C.
Cir. 1981).
deserves some First Amendment
protection.
• Justice Powell concurring opinion stated
that courts can determine whether a
privilege applies by using a balancing
test.
• Thus a qualified privilege available, even
where a reporter is called before a
grand jury to testify.
The First Amendment and Press
Shield Laws
“We decline” to take Justice Powell’s concurrence
Post-Branzburg
as a mandate for qualified news reporters’
privilege
in criminal
United States
v. Smith, cases.
135 F.3d 963, 969 (5th Cir. 1998).
 Powell only emphasized that at a certain point,
the First Amendment protects the press from
government.
 To Powell, that point occurs when the grand jury
investigation is not being conducted in good faith.

The First Amendment and Press
Shield Laws
JusticeLaw
White
in Branzburg
C. • Shield
Statutes
invited legislative solution

Many enacted in 1970s – 80s
• More recently, conflicting interpretations
of Branzburg
and high profile journalist contempt
cases also spurred adoption of statutory
shield laws
The First Amendment and Press
Shield Laws
Balco / MLB
steroids
investigation – SF Chronicle reporters
C. • Shield
Law
Statutes
cited for contempt for refusing to disclose source of leaked
Recent
profile
journalist
grand juryhigh
transcripts
in Barry
Bonds case.contempt cases
http://www.youtube.com/watch?v=NH4i7dXBGO8
The First Amendment and Press
Shield Laws
Valeri Plame
– NYT
reporter Judy Miller jailed for 85 days for
C. • Shield
Law
Statutes
refusing to identify White House source who outed undercover
Recent
CIA agent.high profile journalist contempt cases
• Wen Ho Lee – Non-party news organizations pay to settle
nuclear scientist’s privacy case after reporters ordered to
disclose confidential sources.
• Vanessa Legget – Houston book author jailed for 168 days for
refusing to testify before federal grand jury investigating
murder for hire.
• Grand jury cases rejected First Amendment privilege; civil
case applied it narrowly to overcome privilege.
The First Amendment and Press
Shield Laws
C. Shield Law Statutes
35 states
andprovide
DC have
adoptedrather
somethan
form
• Generally
most
a “qualified”
“absolute” privilege
• Journalist testimony not compelled unless the
party seeking the information shows:
• Information is highly material and relevant.
• Compelling need.
• Information not available by other means.
• (Compare with Justice Stewart’s dissent.)
The First Amendment and Press
Shield Laws
C. Shield Law Statutes
• Differ
Protects
confidential in
sources
only in
state-to-state
protections.
some.
• Unpublished information also protected
in others.
• Some apply in both criminal and civil
cases
• Others apply only in civil proceedings.
The First Amendment and Press
Shield Laws
C.October
Shield
Law Statutes
2007, U.S. House passed the Free Flow of Information Act
(H.R.
2102) by Legislation
398 to 21.
Federal


Senate Judiciary Committee approved similar provision (S. 2035).

Both provide a qualified privilege to reporters that would apply in
criminal and civil contexts.
• Senate version protects only the identity of confidential
sources and records.
• House bill extends protection not only to confidential sources
and to documents or information obtained during the
newsgathering process.
The First Amendment and Press
Shield Laws
• Texas
Free
Flow
of Information Act (SB 966)
C.
Shield
Law
Statutes
• Passed by the Senate in 2007
• But died in the House in the last days of the 80th regular
session

objection on a point of order.
• Qualified privilege against compelled court testimony or
disclosure of confidential sources.
• Reporters' work products, such as notes and tapes,
would also have been protected by this limited
privilege.
The First Amendment and Press
Shield Laws
D. Conclusion
• Does the First Amendment include a
privilege for journalists against
compelled testimony about news
sources or news gathering?
Yes, in some circuits and states.
 Mostly civil cases.
 Branzburg the last word in the grand
jury context?
 Shield law statutes may fill the gap.
