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Reporter’s privilege

Reporter’s privilege. Right of reporters Not to testify in court Not to testify before a grand jury Not to hand over evidence Not to reveal identities of confidential sources To be protected against newsroom searches. Branzburg v. Hayes (1972).

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Reporter’s privilege

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  1. Reporter’s privilege • Right of reporters • Not to testify in court • Not to testify before a grand jury • Not to hand over evidence • Not to reveal identities of confidential sources • To be protected against newsroom searches

  2. Branzburg v. Hayes (1972) • Facts: three different reporters, 4 companion cases. Branzburg (Louisville CJ) watched people manufacture drugs; another covered Black Panthers and agreed not to report on anything. Information is subpoenaed by grand juries. • Issue: Do reporters have a First Amendment privilege to refuse to reveal their confidential sources and information to a grand jury?

  3. Press arguments • If reporters reveal their sources, their sources will dry up. Protection of sources is critical to newsgathering. • Will create a chilling effect on the media. • Police will abuse this power, be lazy and make the media do their work for them. • Responding to subpoenas is time-consuming and costly. • We are the watchdogs of, not participants in, the judicial process.

  4. Branzburg v. Hayes • Ruling: No, there is no First Amendment-based privilege. 5-4 decision (4-1-4). • Rationale: 1st A rights of journalists are the same as those of every other person. 1st A is an individual right, not an institutional right, and journalists don’t have additional rights that regular folks don’t have. No evidence that sources would dry up. Confidential sources are a problem only when a crime is involved. Legislative bodies could pass laws to protect reporters.

  5. Branzburg reinterpretation • Most lower courts have reinterpreted the Supreme Court’s decision in Branzburg. The 3-part test from Stewart’s dissent now is the law in many jurisdictions.

  6. Branzburg reinterpretation: • 4 dissenters and Powell, who concurred with the majority, agree the media have SOME 1st Amendment protection in this area of law. So the lower courts count five votes for that position – a majority. • This creates what is called a “qualified privilege”

  7. Stewart’s 3-part test for a qualified privilege • According to Stewart’s dissent, to compel a reporter to testify, one must show all of these three things: • Reporter has information relevant to a crime • There’s no other way to get the information • There is a “compelling and overriding” interest in the information

  8. Shield laws • Reporters also often have testimonial privileges created by state shield laws. • 1893: first shield law • 1972: about 12 states • 2003: 30 states and DC

  9. N.C. Shield Law (1999) • Creates a qualified privilege based on Stewart’s dissent in Branzburg

  10. N.C. Shield Law • To determine whether this will protect you, first decide if you are eligible for protection. If you are eligible, then determine whether the party seeking your testimony will be able to prove what he or she must prove to compel you to testify anyway. (Even if you are eligible for protection, you might not be protected.)

  11. N.C. Shield Law • “Journalist” is broadly defined to include “Any person, company or entity [or their employees] engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.”

  12. N.C. Shield Law (cont.) • The privilege can be used at all types of legal proceedings, including grand juries, criminal or civil cases, and “any judicial or quasi-judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.”

  13. N.C. Shield Law (cont.) • The law can be used to protect both confidential and nonconfidential information. • The law protects you in cases in which you are a party, such as libel cases (as well as when you are not). • The law cannot be used to refuse to testify about a crime or tortious conduct to which you have been an eyewitness. • The law protects only information obtained after Oct. 1, 1999.

  14. N.C. Shield Law • The protection of the shield law still can be overcome by a demonstration that: • 1. The information sought is “relevant and material” to a legal proceeding. • 2. There are no alternate sources for this information. • 3. The person seeking the information cannot maintain a claim or defense without it.

  15. Your privilege varies (in general): • Civil vs. criminal cases • Grand jury hearings vs. trials • Eyewitness vs. second-hand information • Are you a party to the case? • State vs. federal court • Which state are you in? • Did you promise confidentiality?

  16. Can you reveal a confidential source if you want to? • Cohen v. Cowles Media Co. (1992) • Facts: Dan Cohen, an ad exec and active in politics, just before a 1982 election offered four local news reporters information about a prior misdemeanor shoplifting conviction of a Dem. candidate for Lt. Gov. Reporters from Minn. Star Tribune and St. PPP agreed to keep his name confidential. • Issues: Is a reporter’s confidentiality agreement with a source a legally binding contract? Does the 1st Amendment give the reporter the right to break that contract without being punished? • Ruling: Yes, No

  17. Cohen v. Cowles Media Co. • Rule: The 1st Amendment free press clause does not mean the media can break contracts with impunity. Journalists have to follow the same laws as other people. Enforcing contracts has only “incidental effects” on newsgathering and reporting. Cohen won $200,000.

  18. Zurcher v. Stanford Daily (1978) • Facts: Stanford University student paper covered a student demonstration at a hospital that resulted in violence and injuries to police. Paper published articles and photos. Police got a search warrant – convinced judge that there was reason to believe photos and negs would help them ID people who had assaulted the police. • Issue: Does the First Amendment protect the media from otherwise legal newsroom searches? • Ruling: No

  19. Zurcher v. Stanford Daily (cont.) • Supreme Court decision closely parallels its decision in Branzburg. • Journalists do not get more 1st Amendment protection than other citizens. • The 4th Amendment protection against “unreasonable searches and seizures” that everyone enjoys is adequate for journalists too. • Police need to be allowed to their jobs. • Legislatures can create a privilege by statute.

  20. Privacy Protection Act of 1980 • Passed by Congress in response to Zurcher. • Parallels state shield laws.

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