Reporter’s Privilege
How to Stay Out of Jail
What Are My Obligations?

To your source
A promise to a source is an enforceable
contract.
 Cohen v Cowles Media Company (1991)


To your publication/company/editor(s)
Types of Promises Made to
Sources

Confidential

Off-the-record

On background

Not for attribution

Questions in advance

Nature of article/publication
What Is the Law?
What Law Applies?
Why do we care?
Sources of the Privilege

First Amendment

Common Law

Statute
What Law Applies?
Federal
 New York
 Other State
 Other Country

Who Qualifies as a Journalist for
Claiming the Privilege?
Book author/publisher
 Magazine author/publisher
 Freelance author
 Editor
 First-time book author
 Writer for established website
 Blogger

How Do the Laws Differ?

What they protect
Sources versus information
 Non-confidential versus confidential
 Published versus unpublished
 Communications versus firsthand
observations (eyewitness to a crime)


What protection they give
Absolute versus qualified
 If you are sued for defamation

New York Shield Law

(b) Exemption of professional journalists and
newscasters from contempt: Absolute protection
for confidential news. …

(c) Exemption of professional journalists and
newscasters from contempt: Qualified protection
for nonconfidential news. …

the party seeking such news must make a “clear and
specific showing” that the information: (i) is highly
material and relevant; (ii) is critical or necessary to the
maintenance of a party's claim, defense or proof of an
issue material thereto; and (iii) is not obtainable from
any alternative source
The First Amendment Privilege
Step One – U.S. Supreme Court

Branzburg v Hayes (1972)
Grand jury subpoena
 4-4-1 Decision
 Justice Powell’s concurrence:

 “The
asserted claim to privilege should be judged
on its facts by the striking of a proper balance
between freedom of the press and the obligation of
all citizens to give relevant testimony with respect
to criminal conduct.”
The First Amendment Privilege
Step Two – Interpreting and Applying
Branzburg

Majority (but not unanimous) approach
There is no privilege when a reporter
witnesses a crime.
 There is a qualified privilege for confidential
sources.
 There is a qualified privilege for nonconfidential, unpublished information.

The First Amendment Privilege
Step Two – Interpreting and Applying
Branzburg

Minority approach: the two extremes

No privilege exists.

There is a qualified privilege for published
information.
The First Amendment Privilege
Step Three – the 21st Century





McKevitt v. Pallach (7th Circuit July 2003)
Wen Ho Lee (D.D.C. October 2003)
 $500 a day; news media paid off the plaintiff
In re Special Proceedings (Taracani) (1st Circuit June
2004)
 $1,000 a day; House arrest
Vanessa Leggett
 Jail
Judy Miller and Matt Cooper


Jail
…and many more.
Federal Shield Law
S 448
Senate Judiciary Committee November 19, 2009

Confidential sources and information
received in confidence – qualified
privilege.

Exhaustion of “all reasonable alternatives”
in all cases, plus…
Federal Shield Law
S 448

And in criminal cases,
Reasonable grounds to believe a crime has
occurred;
 Reasonable grounds to believe the
information is “essential” to the investigation,
prosecution, or defense;
 If DOJ is seeking it, AG certification that DOJ
guidelines have been followed;
 The journalist has not established by “clear
and convincing evidence” that disclosure
would be contrary to the public interest…”

Federal Shield Law
S 448

And in civil cases,
The information sought is “essential to
resolution of the matter”; and
 The party seeking the information has
established that “the interest in compelling
disclosure clearly outweighs the public
interest in gathering and disseminating the
news or information at issue and maintaining
the free flow of information.”

Federal Shield Law
S 448

Exemptions:
Eyewitness to a crime
 “Reasonably necessary” to prevent death,
kidnapping or substantial bodily harm
 Information would “materially assist” the
government in “preventing or mitigating” an
act of terrorism or another act that is a
“reasonably likely to cause significant and
articulable harm to national security.”

Federal Shield Law
S 448

“Covered Person”
“with the primary intent to investigate events
and procure material in order to disseminate
to the public news or information concerning
local, national, or international events or other
matters of public interest …”
 has such intent “at the inception”
 obtains the information “in order to
disseminate” it.

Application of the Privilege in a
Libel Lawsuit
Three alternatives (two bad)
1.
2.
3.
Used as a sword…credible, long term
source testimony
May not use the fact of a source for the
information
Adverse inference
Summary
There is no way to know in advance
whether state or federal law will apply.
 There is no guarantee that a privilege will
be recognized by the court you are in.
 If a privilege is recognized, it may be
qualified and if it is, there is no way to
know whether it will be overcome.

Access
Sources of Rights of Access

First Amendment to the U.S. Constitution
and various state constitutional provisions

Statutes (Freedom of Information Act)

Consent (express or implied)
Types of Access

To courts

To public meetings and proceedings

To documents and materials
Access to Proceedings

Criminal and civil court proceedings

Press Enterprise Co. v Superior Court

Administrative proceedings (e.g.,
deportation proceedings under
immigration laws)

Public meetings and hearings
Access to Places – What Are
Your Rights?

Private property



The property owner has a right to control access and conditions
for access to his own property.
 Access versus permission to take photographs.
 Ride alongs.
 Posted property.
Implied consent
 Shopping malls
 Door-to-door salesman rule
Disaster sites
 Police versus private property owner – who is in control?
Access to Places – What Are
Your Rights?

Public property




The press has a right to go anywhere the general
public can go.
The press has a right to take photographs anywhere
the general public can take photographs.
The press does not have a right to go anywhere the
general public is not permitted to go.
Individual members of the press cannot be
discriminated against based on their publication’s
content when gaining special access to public
property.
Access to Places – What Are
Your Rights?

Public property – special access for the
media
Must be non-discriminatory and reasonable
 Can the government require…

 Fingerprinting
and background checks
 Liability waivers
 Restrictions on reporting or news coverage

Press passes – what rights do they give you?
Freedom of Information
Act (FOIA)
Making the Government Give You
Documents
Alphabet Soup

FOIA


Federal “Freedom of Information Act”
FOIL

New York’s “Freedom of Information Law”
FOIA Structure

Statutory, not constitutional, right of
access (except in Florida)

Right to inspect (and copy) records, not a
right to information or interviews

Statute applies only to enumerated
agencies and right extends only to records
or files within the scope of the law
What Can I Demand?
Inspect
 Copy
 Receive a copy in your preferred form
(electronic or hard copy)
 Receive redacted copies of documents or
computer databases if only some portions
are exempt from disclosure.

Fees

Paper copies

Computer database records
Search fees
 Programming fees


Fee waivers
Exemptions

Common exemptions include:
Records revealing deliberative process,
including preliminary drafts or notes
 Certain records of law enforcement agencies
(relating to ongoing investigations)
 Trade secrets
 Records containing uncorroborated
allegations of criminal activity subject to
destruction

Process and Procedure

Written request


Get a response
Wait forever and don’t get a response

Appeal within the agency

File a lawsuit
Tips for Making FOIA Request







Ask for documents, not information
Make a straightforward request - don’t tell the
agency why you want the records or why you
think they should be disclosed
Break down request by category
Request a fee waiver
Include a telephone number
Keep a copy of your request
Make sure your request is dated
Useful Source of Information

Reporter’s Committee for Freedom of the
Press
www.rcfp.org
 How to Use the Federal FOI Act

Open Meetings
Anonymous Speech Online
“Right” to Speak Anonymously

Right to speak anonymously
The Federalist Papers
 The Anonymous Leaflet

Compelling a speaker to identify himself
when speaking
versus
 Precluding the government or courts from
unmasking the identity of a speaker

“Right” to Speak Anonymously

Allegedly libelous speech, online, by
anonymous poster
Dendrite test

Plaintiff must make efforts to notify the
anonymous poster and allow a reasonable
time for him/her to respond

Plaintiff must identify the exact statements
made by the poster

Complaint must set forth a prima facie
cause of action

Plaintiff must bring forth sufficient
evidence for each element of its claim

Court must balance the strength of the
speaker's claim to First Amendment
protection against the strength of the
plaintiff's underlying legal claim and the
need for disclosure of the speaker's
identity.

Does the shield law apply?
Should it?
The End