Protecting sources
A constitutional clash — with
the 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
• 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”
• All must testify before the grand jury
• The First Amendment belongs to
everyone, not just the press
Journalist’s or
reporter’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 threepart balancing test
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 “enigmatic
concurring 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
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. Cowles
Media 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