Protecting Sources

Protecting sourcesA constitutional clash — withthe media on the losing end

An old dilemmaIn 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate

An old dilemmaIn 1848, John Nugent of the New York Herald was held for refusing to identify a source to the SenateThe Herald gave Nugent a raise

An old dilemmaIn 1848, John Nugent of the New York Herald was held for refusing to identify a source to the SenateThe Herald gave Nugent a raiseAfter 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”

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

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 juryThe First Amendment belongs to everyone, not just the press

Journalist’s orreporter’s privilegeAs with free press/fair trial, a balancing test

Journalist’s orreporter’s privilegeAs with free press/fair trial, a balancing testCourts decide on a case-by-case basis

Journalist’s orreporter’s privilegeAs with free press/fair trial, a balancing testCourts decide on a case-by-case basisGuidelines have shifted over time

Branzburg v. Hayes (1972)Paul Branzburg’s sources had information about drugsTwo co-defendants had done confidential reporting on the Black Panther Party

Byron “Whizzer” WhiteWrote majority opinionRejected reporter’s privilegeWrote that “the lonely pamphleteer” is as important as professional journalists

Potter StewartWrote minority decisionCriticized majority’s “disturbing insensitivity” to the role of a free pressProposed a three-part balancing test

The Stewart testDoes the journalist possess “clearly relevant” information?

The Stewart testDoes the journalist possess “clearly relevant” information?Is there no way of obtaining the information by “less destructive” means?

The Stewart testDoes 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 “enigmaticconcurring opinion”Sides with majority’s view that there is no reporter’s privilegeCalls for “striking of a proper balance” between freedom of the press the obligation to testifyStewart wins by losing (but not forever)

The balancing test in practiceRelevance and importance of information

The balancing test in practiceRelevance and importance of informationAvailability through alternative means

The balancing test in practiceRelevance and importance of informationAvailability through alternative meansType of controversyReporter’s privilege is weaker in a criminal case than a civil case

The balancing test in practiceRelevance and importance of informationAvailability through alternative meansType of controversyHow information was gatheredConfidential sources are more privileged than first-hand observation such as Josh Wolf’s footage

Shield lawsAbout 30 states have themA shield law is being considered in Massachusetts

Shield lawsAbout 30 states have themExcept for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege

Shield lawsAbout 30 states have themExcept for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilegeNone is absolute — more like the Stewart balancing test

Shield lawsAbout 30 states have themExcept for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilegeNone is absolute — more like the Stewart balancing testNo federal shield law

What should be protected?Justice White said you can’t define who is a journalistVanessa Leggett ran afoul of this and served 168 daysIs it possible to define journalism?

Citizen journalistsJosh Wolf is the modern “lonely pamphleteer”We need to protect journalism, and not worry about who’s a journalist

Media arroganceMark 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. CowlesMedia Co. (1991)Damned if you do, damned if you don’t

Cohen v. CowlesMedia Co. (1991)Damned if you do, damned if you don’tBased on the doctrine of promissory estoppelA false promise that leads someone to engage in damaging behaviorSimilar to contract law

Cohen v. CowlesMedia Co. (1991)Damned if you do, damned if you don’tBased on the doctrine of promissory estoppelA false promise that leads someone to engage in damaging behaviorSimilar to contract lawJustice White: “generally applicable laws” do not violate First Amendment

McKevittv. Pallasch (2003)Richard Posner a highly influential conservative judgeCan’t ignore Supreme Court precedentTells colleagues to re-read Branzburg and see it for what it is

Judith Miller case (2005)Judge Sentelle adopts Posner’s viewNotes that Justice Powell sided with the Branzburg majorityAdds that Justice Department used balancing test

Protecting Sources

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Protecting Sources