Reporter’s Privilege

1. Reporter’s Privilege How to Stay Out of Jail

2. 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)

3. Types of Promises Made to Sources • Confidential • Off-the-record • On background • Not for attribution • Questions in advance • Nature of article/publication

4. What Is the Law?What Law Applies?Why do we care?

5. Sources of the Privilege • First Amendment • Common Law • Statute

6. What Law Applies? • Federal • New York • Other State • Other Country

7. 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

8. 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 • What they protect • Sources versus information • Non-confidential versus confidential • Published versus unpublished • Communications versus firsthand observations (eyewitness to a crime) • What protection they give • Absolute versus qualified • If you are sued for defamation

9. 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

10. The First Amendment PrivilegeStep 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.”

11. The First Amendment PrivilegeStep 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 • There is a qualified privilege for non-confidential, unpublished information.

12. The First Amendment PrivilegeStep Two – Interpreting and Applying Branzburg • Minority approach: the two extremes • No privilege exists. • There is a qualified privilege for published information.

13. The First Amendment PrivilegeStep 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.

14. Federal Shield LawS 448Senate Judiciary Committee November 19, 2009 • Confidential sources and information received in confidence – qualified privilege. • Exhaustion of “all reasonable alternatives” in all cases, plus…

15. Federal Shield LawS 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…”

16. Federal Shield LawS 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.”

17. Federal Shield LawS 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.”

18. Federal Shield LawS 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.

19. Application of the Privilege in a Libel Lawsuit Three alternatives (two bad) • Used as a sword…credible, long term source testimony • May not use the fact of a source for the information • Adverse inference

20. 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.

21. Access

22. 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)

23. Types of Access • To courts • To public meetings and proceedings • To documents and materials

24. 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

25. 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?

26. 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.

27. 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?

28. Freedom of Information Act (FOIA) Making the Government Give You Documents

29. Alphabet Soup • FOIA • Federal “Freedom of Information Act” • FOIL • New York’s “Freedom of Information Law”

30. 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

31. 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.

32. Fees • Paper copies • Computer database records • Search fees • Programming fees • Fee waivers

33. 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

34. Process and Procedure • Written request • Get a response • Wait forever and don’t get a response • Appeal within the agency • File a lawsuit

35. 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

36. Useful Source of Information • Reporter’s Committee for Freedom of the Press • www.rcfp.org • How to Use the Federal FOI Act

37. Open Meetings

38. Anonymous Speech Online

39. “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

40. “Right” to Speak Anonymously • Allegedly libelous speech, online, by anonymous poster

41. 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

42. 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.

43. Does the shield law apply?Should it?

44. The End