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Branzburg v. Hayes, reporters’ privilege & circuit courts

By Bill Kenworthy
First Amendment Center legal research assistant
07.12.05

This compilation is a guide to how the circuit courts have ruled on a First Amendment privilege for reporters in protecting confidential sources.

Branzburg v. Hayes overview

Branzburg v. Hayes, decided in 1972 by the U.S. Supreme Court, is the consolidation of four cases that addressed the issue of reporters’ privilege. “The issue in these cases” as stated by Justice Byron White, “is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.”

Facts
Two of the cases, Branzburg v. Hayes and Branzburg v. Meigs, involved Louisville (Ky.) Courier-Journal staff reporter Paul M. Branzburg. In 1969, Branzburg wrote an article detailing his observations of two young area residents synthesizing hashish from marijuana, doing which, they asserted, earned them about $5,000 in three weeks. Branzburg wrote in the article that he had promised not to reveal the identities of the two individuals. Shortly afterward, Branzburg was subpoenaed by a grand jury. He appeared but refused to identify any individuals mentioned in his article. In the second case, Branzburg was subpoenaed again after he published an article in 1971 describing in detail the use of drugs in Frankfort, Ky. In this instance Branzburg moved to quash the subpoena. The Kentucky Court of Appeals rejected any claim of a First Amendment privilege in these cases.

The third case, In re Pappas, involved newsman-photographer Paul Pappas. While covering civil unrest in New Bedford, Mass., in July 1970, Pappas was allowed to enter and remain in the New Bedford Black Panther headquarters. His entry was allowed on the condition that he not disclose anything he saw or heard in the headquarters except in connection with an anticipated police raid on the headquarters. Pappas ended up writing no story, as there was no raid; however, he was subpoenaed to appear before a grand jury to testify on what he saw in the headquarters. Pappas entered a motion to quash on First Amendment and other grounds but it was denied by the trial court judge, who ruled that Pappas had no constitutional privilege to refuse to divulge to the grand jury what he had seen and heard, including the identity of persons he had observed. The Supreme Judicial Court of Massachusetts affirmed the ruling.

In the fourth case, United States v. Caldwell, Earl Caldwell, a reporter for The New York Times assigned to cover the Black Panther Party and other black militant groups, was subpoenaed twice in 1970 to testify about what he had learned concerning the aims, purposes and activities of the Black Panthers. Caldwell refused to testify and entered a motion to quash. The district court denied the motion on the ground that "every person within the jurisdiction of the government" is bound to testify upon being properly summoned. The court eventually held Caldwell in contempt. The 9th U.S. Circuit Court of Appeals reversed the decision and “determined that the First Amendment provided a qualified testimonial privilege to newsmen.”

Ruling
The U.S. Supreme Court affirmed the judgments in the first three cases and reversed the fourth. Justice White wrote the opinion of the majority in the 5-4 decision and summed up the crux of the case this way: “The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”

The Court acknowledged that newsgathering did qualify for First Amendment protection, adding that “without some protection for seeking out the news, freedom of the press could be eviscerated.” However, the cases in question “involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.” The justices wrote, “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.”

Average citizens enjoy no constitutional protection from appearing before a grand jury and disclosing information received in confidence the Court said, and reporters should not be exempt, either.

The reasoning behind the reporters’ argument is clear: If reporters are forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse, or will be reluctant, to furnish newsworthy information in the future. The resulting chilling effect on sources will diminish the flow of news. The Court answered that argument this way: “From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.”

The Court then said the First Amendment does not invalidate every law that may impose a burden on the press, and emphasized that newspapers have no special immunity from the application of general laws. The justices gave examples of other instances and cases in which the enforcement of laws hampered newsgathering. “It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation,” the opinion declared.

The Court delivered what seems to be a definitive statement on the issue of reporters’ privilege:

“A number of States have provided newsmen a statutory privilege of varying breadth, but the majority have not done so, and none has been provided by federal statute. Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do…we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”

However, the Court ended the majority opinion with a qualification of its ruling, providing a small amount of “wiggle room” for proponents of reporter’s privilege: “News gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification.”

Justice Powell, in his concurring opinion, which was described by one observer as a concurrence that turned into a dissent, provided a little more wiggle room as to the existence of a reporters’ privilege when he wrote:

“As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. 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 balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”

Four justices dissented, arguing that a reporter should be protected from testifying by the First Amendment. Justice Potter Stewart outlined a “balancing test” to be used when a reporter is asked to appear before a grand jury and reveal confidences. “I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.”

How the circuits have interpreted Branzburg
Despite what seems to be a ruling that no reporters’ privilege exists, most of the circuit courts have acknowledged a qualified privilege. There is little agreement on the extent of the privilege, however.

The rulings in some circuits slant toward an absolute privilege, while some hold that a privilege exists only when a subpoena is issued in bad faith. Even within the circuits there are distinctions. In criminal cases there is an inclination toward disclosure; in civil cases nondisclosure is favored. The type of information sought also plays a role. Generally, information given with a promise of confidentiality receives greater First Amendment protection. In addition, most of the circuits apply Justice Stewart’s three-part balancing test or a variation of it.

Circuits where privilege is recognized: cases, excerpts

1st Circuit
Recognizes a qualified privilege. The 1st Circuit requires the party seeking information to satisfy all conditions of a balancing test based on the test outlined by Justice Stewart.

  • United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988) - “Courts faced with enforcing requests for the discovery of materials used in the preparation of journalistic reports should be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights.”

    “We discern a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if nonconfidential, becomes routine and casually, if not cavalierly, compelled.” (LaRouche was a criminal case in which the defendant subpoenaed the outtakes of a television interview with an important government witness. The court found that the outtakes did not involve confidential information but that, because "First Amendment interests" were implicated even with respect to nonconfidential information, the disclosure should not be "routinely," "casually" or "cavalierly" compelled. Nevertheless, the court found that those interests were outweighed by the defendant's Fifth Amendment right to a fair trial and Sixth Amendment right to confront and effectively cross examine adverse witnesses. Consequently it upheld the district court's denial of a motion to quash the subpoena. In re Special Proceedings, 291 F. Supp. 2d 44, 54 (D.R.I. 2003))

  • More recent: In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004) - (Case involving Rhode Island TV reporter James Taricani.) “The three leading cases in this circuit require 'heightened sensitivity' to First Amendment concerns and invite a 'balancing' of considerations (at least in situations distinct from Branzburg). [Cusumano v. Microsoft Corp.,] 162 F.3d 708 (1st Cir. 1998) at 716 at 716-17; LaRouche, 841 F.2d at 1182-83; [Bruno & Stillman, Inc. v. Globe Newspaper, Co.,] 633 F.2d 583 (1st Cir. 1980) at 596-99. In substance, these cases suggest that the disclosure of a reporter's confidential sources may not be compelled unless directly relevant to a nonfrivolous claim or inquiry undertaken in good faith; and disclosure may be denied where the same information is readily available from a less sensitive source.”

    2nd Circuit
    Recognizes a fairly broad qualified privilege. The 2nd Circuit requires the party seeking information to satisfy all conditions of the balancing test.

  • Von Bulow v. von Bulow, 811 F.2d 136, 142 (2nd Cir. 1987) - The court cited its decision in a 1972 civil case: “We held that the public interest in non-disclosure of a journalist's confidential sources outweighed the public and private interest in compelled testimony. Central to our analysis in Baker was our concern that "the deterrent effect such disclosure is likely to have upon future 'undercover' investigative reporting ... threatens freedom of the press and the public's need to be informed.’”

  • More recent: Gonzales v. NBC, 194 F.3d 29, 35 (2nd Cir. 1998) – “There were also broader concerns undergirding the qualified privilege for journalists — such as the pivotal function of reporters to collect information for public dissemination, and the paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters. For these reasons, we reaffirm that the qualified privilege for journalists applies to nonconfidential, as well as to confidential, information.”

  • New York Times Co. v. Gonzales, 04 Civ. 7677 (2nd Cir. 2005) - (Case involving telephone records of reporters Judith Miller and Philip Shenon.) “Based upon the Second Circuit's interpretation of Branzburg in the cases just described, district courts in this circuit have recognized the existence of a qualified reporter's privilege derived from the First Amendment. In view of the foregoing, it is concluded that the Second Circuit, based on Branzburg, has recognized a qualified First Amendment privilege, applicable in civil actions and in all phases of a criminal prosecution, that protects reporters from compelled disclosure of confidential sources. Pursuant to this qualified privilege, the party seeking disclosure must make ‘a clear and specific showing that the sought information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources.’”

    3rd Circuit
    Recognizes a fairly broad qualified privilege. The 3rd Circuit requires the party seeking information to satisfy all conditions of the balancing test.

  • United States v. Criden, 633 F.2d 346, 356-357 (3d Cir. 1980) – “Extremely impressive pragmatic reasons, as well as conceptually abstract a priori principles, underlie the precept that a journalist does in fact possess a privilege that is deeply rooted in the first amendment. When no countervailing constitutional concerns are at stake, it can be said that the privilege is absolute; when constitutional precepts collide, the absolute gives way to the qualified and a balancing process comes into play to determine its limits ... . The journalists' privilege therefore must be considered in the context of Supreme Court teachings that there is no absolute right for a newsman to refuse to answer relevant and material questions asked during a criminal proceeding.”

  • In re Madden, 151 F.3d 125, 128-29 (3d Cir. 1998) - “We have recognized that when a journalist, in the course of gathering the news, acquires facts that become a target of discovery, a qualified privilege against compelled disclosure appertains. Riley v. City of Chester, 612 F.2d 708 (3rd Cir. 1979) (journalists' privilege for civil cases); United States v. Cuthbertson, 630 F.2d 139 (3rd Cir. 1980) (journalists' privilege for criminal cases). Premised upon the First Amendment, the privilege recognizes society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public. It is an interest of sufficient legal importance to justify some incidental sacrifice of sources of facts needed in the administration of justice…we have determined that a journalist's privilege exists.”

  • Lower court rulings within 3rd Circuit: In re: Subpoena Directed to Barnard, 27 Media L. Rep. 1500 (E.D. Pa. 1999) - “It is well established that members of the press enjoy a qualified First Amendment privilege which limits disclosure of confidential sources, resource materials, unpublished material ... the Third Circuit Court of Appeals established a three prong test which must be met before a party may compel a journalist to disclose privileged information.”

    4th Circuit
    Recognizes a qualified privilege, but only under certain conditions. In the 4th Circuit there must be evidence of governmental harassment or “bad faith,” or a promise of confidentiality.

  • In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) – “We hold that the incidental burden on the freedom of the press in the circumstances of this case does not require the invalidation of the subpoenas issued to the reporters, and absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution.”

  • Lower court rulings within 4th Circuit: United States v. King, 194 F.R.D. 569, 584 (E.D. Vir. 2000) – “In sum, a survey of the decisions in this circuit teaches that our Court of Appeals has recognized that Branzburg does not create a reportorial privilege, but that it entitles reporters to protection under certain circumstances.”

  • United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D Vir. 2002) – “Today, a First Amendment journalist privilege is properly asserted in this circuit where the journalist produces some evidence of confidentiality or governmental harassment. Only where such evidence exists may district courts then proceed to strike a balance in the circumstances between the competing interests involved, namely "freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

    5th Circuit
    Recognizes a qualified privilege in civil cases and requires the party seeking information to satisfy all conditions of a balancing test. The 5th Circuit allows for privilege in criminal cases only when there is evidence of government intrusion.

  • United States v. Smith, 135 F.3d 963, 969 & 971-972 (5th Cir. 1998) – “Although some courts have taken from Justice Powell's concurrence a mandate to construct a broad, qualified newsreporter’s privilege in criminal cases, we decline to do so. Justice Powell's separate writing only emphasizes that at a certain point, the First Amendment must protect the press from government intrusion. To Justice Powell, however, that point occurs only when the ‘grand jury investigation is not being conducted in good faith.’

    “In Miller v. Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980), cert. denied, 450 U.S. 1041, (1981), we held that in civil libel suits, reporters possess a qualified privilege not to disclose the identity of confidential informants. To defeat this privilege, the discoverer must show that: 1) the information is relevant; 2) it cannot be obtained by alternative means; and 3) there is a compelling interest in the information. Miller concluded that this privilege was justified because the balance of interests favored the press in civil libel cases, unlike the grand jury proceedings considered in Branzburg.” Later in the opinion the court writes, “We conclude that newsreporters enjoy no qualified privilege not to disclose nonconfidential information in criminal cases.”

  • In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983) – “We have recognized that the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence. Miller v. Transamerican Press, 621 F.2d 721 (5th Cir.) Our course was dictated by our careful reading of the plurality and concurring opinions in Branzburg v. Hayes. The privilege, we held, is not absolute, but qualified.”

    9th Circuit
    Recognizes a fairly broad qualified privilege. The 9th Circuit requires the party seeking information to satisfy all conditions of a balancing test developed in this circuit.

  • Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) – “When facts acquired by a journalist in the course of gathering the news become the target of discovery, a qualified privilege against compelled disclosure comes into play. In Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975), cert. denied, 427 U.S. 912, 49 L. Ed. 2d 1203, 96 S. Ct. 3200 (1976), we interpreted Branzburg v. Hayes as establishing such a qualified privilege for journalists. Eight of the other nine circuits that have decided the question read Branzburg the same way.”

  • In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir. 1993) – “Read together with the majority opinion, with which Justice Powell concurred, [Powell’s concurring opinion] must be understood to mean that where a grand jury inquiry is not conducted in good faith, or where the inquiry does not involve a legitimate need of law enforcement, or has only a remote and tenuous relationship to the subject of the investigation then, the balance of interests struck by the Branzburg majority may not be controlling. The balancing of interests suggested by Justice Powell is in the limited circumstances he mentioned, where there is, in effect, an abuse of the grand jury function. If Justice Powell's concurrence is read more broadly, it would be inconsistent with Justice White's opinion with which he concurred. The Sixth Circuit has reached a similar conclusion. See Storer Communication, Inc. v. Giovan (rejecting claim that Justice Powell's concurrence creates a reporter's privilege or sanctions a rebalancing of interests absent questions of good faith, press harassment, or lacking relevance to a legitimate law enforcement need). This view is supported by our own post-Branzburg decisions, In re Lewis, 501 F.2d 418 (9th Cir. 1974), cert. denied, 420 U.S. 913, 43 L. Ed. 2d 386, 95 S. Ct. 1106 (1975) and In re Lewis, 517 F.2d 236 (9th Cir. 1975).”

  • Lower court rulings within 9th Circuit: Condit v. Nat'l Enquirer, Inc., 289 F. Supp. 2d 1175, 1177-78 (E.D. Cal. 2003) – “In the seminal case of Branzburg v. Hayes, the Supreme Court held that the First Amendment protects the right of the press to gather news and information. The Ninth Circuit has interpreted Branzburg, as establishing a qualified privilege for journalists against compelled disclosure of information gathered in the course of their work ... . Similarly, under Article 1, [Section] 2 of the California Constitution, California protects the reporter's confidential sources. A reporter, editor or publisher may have a constitutional privilege to withhold both his or her sources and unpublished information obtained from such sources in civil litigation. This privilege is designed to protect investigative reporting, and is based on the "free press" guarantees of the First Amendment and correlative provisions of the California Constitution ... . Here, the parties agree that the determination of the privilege is a case-by-case evaluation based on certain factors.”

  • Crowe v. County of San Diego, 242 F. Supp. 2d 740, 750 (S.D. Cal. 2003) – “In Shoen I, the Ninth Circuit affirmed its previous holding in Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912, 49 L. Ed. 2d 1203, 96 S. Ct. 3200 (1976), that federal law provides journalists with a qualified journalists privilege ... . This privilege is qualified and not absolute, and ‘the process of deciding whether the privilege is overcome requires that “the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts, and a balance struck to determine where lies the paramount interest.”’”

    10th Circuit
    Recognizes a fairly broad qualified privilege in civil cases. The 10th Circuit requires the party seeking information to satisfy all conditions of a four-part balancing test. This circuit has not ruled on the privilege in a criminal case.

  • Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977) - “The (Supreme) Court's discussion in both the majority opinion of Justice White and the concurring opinion of Justice Powell recognizing a privilege which protects information given in confidence to a reporter is important. The Court said that the First Amendment occupies a preferred position in the Bill of Rights. It was then careful to point out that any infringement of the First Amendment must be held to a minimum — that it is to be no more extensive than the necessities of the case. The scope and breadth of the protection is fully discussed. (At 681-82 in Branzburg)

    "The majority also makes clear that it is not requiring the press to publish its sources of information or indiscriminately to disclose them on request. From this discussion we infer that the present privilege is no longer in doubt. In holding that a reporter must respond to a subpoena, the Court is merely saying that he must appear and testify. He may, however, claim his privilege in relationship to particular questions which probe his sources.”

  • Lower court rulings within 10th Circuit: United States v. Foote, 30 Media L. Rep. 2469, (D. Kan. 2002) – “The Supreme Court in Branzburg v. Hayes expressly recognized that reporter's newsgathering activities qualify for First Amendment protection. While a five-to-four majority of the Court held that, in the context of a grand jury investigation into the commission of a crime, reporters had an obligation to respond to grand jury subpoenas and to answer relevant questions, the limited scope of this holding was carefully emphasized ... . Moreover, as Judge Merhige observed in Gilbert v. Allied Chemical Corp., if one aligns Justice Powell's concurring opinion with Justice Stewart's dissent, joined by Justices Brennan and Marshall, and with Justice Douglas's dissent, a majority of five justices accepted the proposition that journalists are entitled to at least a qualified First Amendment privilege.

    “Following Branzburg, the Tenth Circuit also recognized a qualified federal common law journalists privilege [in Silkwood] ... . Although Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence. Indeed, the important social interests in the free flow of information that are protected by the reporter's qualified privilege are particularly compelling in criminal cases. Reporters are to be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing.

    Silkwood was concerned with the reporter's privilege in protecting its confidential information. Here, Espinoza seeks to protect nonconfidential information." (Note: Espinosa was a reporter whom the government subpoenaed. He was not a party to the lawsuit but wrote articles in which he attributed numerous statements to the defendant, Foote. The government maintained that in order to introduce those statements at trial, they needed Espinosa to confirm that the defendant was in fact the person quoted in the article.) "The Court is persuaded, however, that nonconfidential information gathered by a reporter or other journalist is entitled to privilege as well; thus, the Court will proceed to apply the balancing test factors to the circumstances presented.”

    11th Circuit
    Recognizes a qualified privilege. The 11th Circuit requires the party seeking information to satisfy all conditions of a balancing test.

  • United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) – “The standard governing the exercise of reporter's privilege as articulated in Miller v. Tranamerican Press, Inc. (5th Cir. 1980) provides that information may only be compelled from a reporter claiming privilege if the party requesting the information can show that it is highly relevant, necessary to the proper presentation of the case, and unavailable from other sources.”

  • Lower court rulings within 11th Circuit - United States v. Diaz, 32 Media L. Rep. 1794 (S.D. Fla. 2004) – “Federal courts, including the Eleventh Circuit, have ‘overwhelmingly recognized a qualified privilege for journalists which allows them to resist compelled disclosure of their professional news gathering efforts and results, whether published or not.’ McCarty v. Bankers Insurance Co., 195 F.R.D. 39, 44 (N.D. Fla. 1998). This reporter's privilege stems from the adverse effect of forcing journalists to testify in judicial proceedings about the substance of their news reports. See United States v. Diaz (reporter’s subpoenas quashed where defendants failed to show alternative sources of information did not exist or that reporters had information relevant to the defense); Miller v. Transamerican Press, Inc. (formally adopting reporter's privilege enunciated by other circuits). The privilege may be overcome only if the information sought is shown to be: (a) highly relevant; (b) necessary to the proper presentation of the case; and (c) unavailable from other sources. The party seeking to compel a reporter's testimony must establish all three prongs by clear and convincing evidence.”

    D.C. Circuit
    Recognizes a qualified privilege in civil cases. Privilege in criminal cases is limited to cases where there is evidence of governmental harassment. There is no privilege in grand jury investigations. In civil cases the D.C. Circuit requires the party seeking information to satisfy all conditions of a balancing test.

  • Zerilli v. Smith, 656 F.2d 705, 711 (D.C.C. 1981) – “[In Branzburg v. Hayes the Supreme Court] recognized ... that because news gathering is essential to a free press, it deserves some First Amendment protection. Thus the Court indicated that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify. Moreover, Justice Powell, who cast the deciding vote in Branzburg, wrote a concurring opinion in which he stated that courts can determine whether a privilege applies by using a balancing test ... . Although Branzburg may limit the scope of the reporter's First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective criminal law enforcement is absent, that case is not controlling.”

  • More recent D.C. Circuit: Hutira v. Islamic Republic of Iran, 211 F.Supp.2d 115, 118 (D.C.C. 2002) – “Courts have recognized that the First Amendment provides journalists with a qualified privilege against compelled disclosure of information obtained through their news gathering activities. See, e.g., Zerilli v. Smith (noting that ‘the Supreme Court [has] explicitly acknowledged the existence of First Amendment protection for news gathering’ activities.); Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631, 636 (D.C. Cir. 1972) (same). ‘Rooted in the First Amendment, the privilege is a recognition that society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public, is an interest of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.’ Shoen v. Shoen (9th Cir. 1993) See also Zerilli, 656 F.2d at 711 (noting that ‘without an unfettered press, citizens would be far less able to make informed political, social, and economic choices’). The privilege is not absolute, however, and may be abrogated upon a sufficient showing by the party seeking the information.

    “In determining whether the privilege applies in a civil action, the court must look to the facts of the particular case, balancing ‘the public interest in protecting the reporter's sources against the private interest in compelling disclosure.’ ” The D.C. Circuit also noted: “The applicability of the privilege in criminal cases is governed by Branzburg v. Hayes.

  • In re Grand Jury Subpoena (Miller), 397 F.3d 964, 968-972 (D.C.C. 2005) (Involves New York Times reporter Judith Miller and the Valerie Plame matter) – “In his opinion below, the Chief District Judge held that ‘a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection.’ In Re Special Counsel Investigation, 332 F. Supp. 2d 26, 31 (D.D.C. 2004). Appellants argue that ‘this proposition of law is flatly contrary to the great weight of authority in this and other circuits.’ Appellants are wrong. The governing authority in this case, as the District Court correctly held, comes not from this or any other circuit, but the Supreme Court of the United States. In Branzburg v. Hayes, the Highest Court considered and rejected the same claim of First Amendment privilege on facts materially indistinguishable from those at bar ... . The Supreme Court in no uncertain terms rejected the existence of such a privilege. As we said at the outset of this discussion, the Supreme Court has already decided the First Amendment issue before us today. “Zerilli cannot possibly help appellants ... the Zerilli Court expressly distinguished its case from Branzburg ... . Zerilli has no force in the present case. Even if Zerilli states the law applicable to civil cases, this is not a civil case. Zerilli could not subtract from the Supreme Court's holding in Branzburg. Zerilli, along with several other lower court decisions cited by appellants, may recognize or at least suggest the possibility of privileges under various circumstances. None of them can change the law applicable to grand juries as set forth in Branzburg.

    Circuits where privilege is not recognized

    6th Circuit
    Does not recognize a reporter’s privilege.

  • Storer Communs. Inc. v. Giovan (In re Grand Jury Proceedings), 810 F.2d 580, 583-584 (6th Cir. 1987) – “In contending that, as a news reporter, he was entitled to assert a ‘privilege grounded in the First Amendment,’ Stone (the appellant, a reporter for Storer Communications) would have us restructure the holding of the Supreme Court in Branzburg v. Hayes since the majority opinion in that case rejected the existence of such a first amendment testimonial privilege ... . Stone insists, however, that when his reading of Justice Powell's concurring opinion is superimposed upon Justice White's majority decision, the government is required to make ‘a clear and convincing showing of relevancy, essentiality, and exhaustion of non-media sources’ for obtaining the information before he can be compelled to testify. In arguing that this amounts to a ‘qualified privilege,’ Stone relies heavily upon the dissenting opinion of three justices in Branzburg, and upon opinions from other circuit courts.

    “Because we conclude that acceptance of the position urged upon us by Stone would be tantamount to our substituting, as the holding of Branzburg, the dissent written by Justice Stewart (joined by Justices Brennan and Marshall) for the majority opinion, we must reject that position.”

  • Lower court rulings within 6th Circuit: In re DaimlerChrysler AG Secs. Litig., 216 F.R.D. 395, 401 (E.D. Mich., 2003) - “In reaching its decision in Grand Jury Proceedings, the Sixth Circuit undertook a detailed analysis of Branzburg, and concluded that the very test proposed by Respondents in the present case — that reporters have a qualified First Amendment privilege which can be overcome only if the party seeking the information meets some balancing test — was without support in either Justice White's majority opinion or Justice Powell's concurrence. Rather, the Sixth Circuit found that the only support for the qualified privilege/balancing approach was in Justice Stewart's dissent, which was rejected by the majority. Furthermore, in reaching its conclusions, the Court in Grand Jury Proceedings explicitly rejected the reasoning and the holding of the very cases from other Circuits on which the Respondents rely in the present case, including Zerilli v. Smith, United States v. Burke, and United States v. Cuthbertson. The Sixth Circuit's analysis was not a mere passing comment, but central to its ultimate decision. Its statement that Branzburg did not create any qualified privilege was categorical, not ruminative.

    “Therefore, however cogent and persuasive I may find the reasoning of cases such as Southwell and Zerilli, I am constrained by Sixth Circuit precedent to find that Respondents are not constitutionally shielded by a First Amendment privilege, qualified or otherwise.”

    7th Circuit
    This circuit has not “taken sides” regarding reporters’ privilege. Reading the 7th Circuit opinions, however, one could easily assume that this court does not recognize the privilege.

  • McKevitt v. Pallasch, 339 F.3d 530, 531-532 (7th Cir. 2003) – “The defendants claim that the tapes in question are protected from compelled disclosure by a federal common law reporter's privilege rooted in the First Amendment. Although the Supreme Court in Branzburg v. Hayes declined to recognize such a privilege, Justice Powell, whose vote was essential to the 5-4 decision rejecting the claim of privilege, stated in a concurring opinion that such a claim should be decided on a case-by-case basis by balancing the freedom of the press against the obligation to assist in criminal proceedings. Since the dissenting Justices would have gone further than Justice Powell in recognition of the reporter's privilege, and preferred his position to that of the majority opinion (for they said that his ‘enigmatic concurring opinion gives some hope of a more flexible view in the future,’), maybe his opinion should be taken to state the view of the majority of the Justices — though this is uncertain, because Justice Powell purported to join Justice White's ‘majority’ opinion.

    “A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter's privilege, though they do not agree on its scope. A few cases refuse to recognize the privilege, at least in cases, which Branzburg was but this case is not, that involve grand jury inquiries. Our court has not taken sides.

    “Some of the cases that recognize the privilege, such as Madden, essentially ignore Branzburg; some treat the ‘majority’ opinion in Branzburg as actually just a plurality opinion, such as Smith; some audaciously declare that Branzburg actually created a reporter's privilege, such as Shoen, 5 F.3d at 1292, and von Bulow.

  • Lower court rulings within 7th Circuit: Patterson v. Burge, Case No. 03 C 4433 (N.D. Ill. 2005) – “The Seventh Circuit stated that it could find no basis, in law or fact, for recognizing a reporter's privilege under federal or state law cognizable in federal proceedings. Rather, it stated that instead of invoking a privilege, ‘courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances.’”

  • Solaia Tech. v. Rockwell Automation Inc., 31 Media L. Rep. 2518, (N.D.Ill. 2003) – “With respect to Specialty's claim that disclosure is protected under federal privilege law rooted in the first Amendment, this issue was also addressed in McKevitt. The Seventh Circuit stated that, ‘It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.’

    The court further explained that ‘when the information in the reporter's possession does not come from a confidential source, it is difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure.’”

    Circuit where privilege question is open

    8th Circuit
    The question of reporters’ privilege is open in this circuit. Some districts in the 8th Circuit have recognized a qualified reporter’s privilege.

  • Cervantes v. Time, Inc., 464 F.2d 986, 992-93 (8th Cir. 1972) – “We are aware of the prior cases holding that the First Amendment does not grant to reporters a testimonial privilege to withhold news sources. But to routinely grant motions seeking compulsory disclosure of anonymous news sources without first inquiring into the substance of a libel allegation would utterly emasculate the fundamental principles that underlay the line of cases articulating the constitutional restrictions to be engrafted upon the enforcement of State libel laws.* Such a course would also overlook the basic philosophy at the heart of the summary judgment doctrine.
    * Indeed, as the (Supreme) Court observed in Caldwell, "without some protection for seeking out the news, freedom of the press could be eviscerated." Similarly, to compel a newsman to breach a confidential relationship merely because a libel suit has been filed against him would seem inevitably to lead to an excessive restraint on the scope of legitimate newsgathering activity.”

  • In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997) - “Some courts have interpreted Branzburg as establishing a qualified news reporter's privilege. See Shoen v. Shoen (9th Cir. 1993.) But see In re Grand Jury Proceedings (Storer), 810 F.2d 580, 583-86 (6th Cir. 1987) (rejecting this theory). Although the Ninth Circuit in Shoen cited our opinion in Cervantes for support, we believe this question is an open one in this Circuit.”

  • Lower court rulings within 8th Circuit: Continental Cablevision, Inc. v. Storer Broadcasting Co., 583 F. Supp. 427, 435 (E.D. Mo. 1984) – “In sum, this Court holds that news reporters enjoy a qualified privilege, derived from the first amendment guarantee of a free press, to withhold from discovery in a civil case confidential or non-confidential sources, materials, or other information where such discovery would impinge on the ability of the media to gather and disseminate news. Said privilege may be defeated in a particular case where the party seeking discovery can demonstrate that the testimony, material or information sought is relevant enough, and otherwise unavailable, to outweigh the first amendment interest of the media. A balancing analysis is the benchmark.”

  • Weinberger v. Maplewood Review, 648 N.W.2d 249, 254-255 (Minn. App. 2002) – “The Supreme Court has recognized that newsgathering is essential to a free press and deserves some First Amendment protection. In the civil context, federal circuit courts have ruled that a qualified reporter's privilege under the First Amendment should be readily available and that a balancing test should be applied. The protections of a reporter's privilege are the same under the Minnesota and federal constitutions.”

  • United States v. Hively, 202 F. Supp. 2d 886, 892 (E.D. Ark. 2002) – “Whether Branzburg establishes a qualified news reporter's privilege is an open issue in this Circuit, as the Eighth Circuit Court of Appeals has specifically noted. On the specific facts of this case and in the absence of any showing that this information is sought in bad faith or for purposes of harassment, this Court declines to recognize any constitutional privilege concerning the nonconfidential testimony sought by the defense.”

  • Richardson v. Sugg, 220 F.R.D. 343, 346 (E.D. Ark. 2004) – “It is an open question in the Eighth Circuit whether there is a qualified reporter's privilege in either civil or criminal cases.

    "Although some courts have refused to recognize or have limited the scope of the qualified reporter's privilege in grand jury or criminal proceedings, in civil proceedings, where the public interest in effective criminal law enforcement is absent, courts have generally made the privilege readily available. E.g. Zerilli, 656 F.2d at 711-12; Continental Cablevision, 583 F. Supp. at 433-34. In civil cases, the qualified reporter's privilege shields both confidential and nonconfidential information. Gonzales v. National Broadcasting Co., 194 F.3d 29, 35-36 (2nd Cir. 1998).

    "The Magistrate Judge finds that this Court should recognize, in accordance with the weight of authority, a First Amendment qualified reporter's privilege in civil cases against compelled disclosure of the identity of the reporter's confidential sources and of information, both confidential and nonconfidential, gathered by the reporter in the news gathering process.”


  • Related

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    Georgia prevails in case on reporter's privilege
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    Track shield laws, subpoenas, confidentiality cases here

    Shield laws


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