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