In 1972, the U.S. Supreme Court recognized in Branzburg
v. Hayes that “news gathering is not without First Amendment
protections.” The justices, however, could not agree about the form or breadth
of those protections. As a result, no nationally recognized newsgatherer’s
privilege exists. Instead, the protections currently in place for newsgatherers
are set forth in a patchwork of inconsistent court decisions and state
Newsgatherers — a term that includes reporters, authors and television
producers — often are subpoenaed to provide information in criminal and civil
court proceedings. In some cases, the information sought is the identity of a
confidential source. In others, the subpoenaing party seeks a reporter’s notes,
video outtakes or other unpublished information. And in others, the newsgatherer
is subpoenaed to testify about a crime or other event he or she witnessed.
Newsgatherers seek protection from these subpoenas for a variety of reasons.
If newsgatherers cannot guarantee the confidentiality promised to some sources,
they say, those sources will refuse to provide information that often is
critical to important investigative reporting. Newsgatherers also claim that
requests for nonconfidential, unpublished information interfere in news
gathering by making them investigative arms of the government and by forcing
them to spend time and money in court proceedings. Newsgatherers also cite the
potential abuse they would suffer if litigants unhappy with a story or a book
could routinely subpoena them to appear in court.
Many courts and state legislatures have recognized the validity of these
concerns, particularly as they relate to confidential sources. In Baker v. F
& F Investment, for example, the 2nd U.S. Circuit Court of Appeals in
1972 said that compelling a newsgatherer to disclose confidential sources
“unquestionably threatens a journalist’s ability to secure information that is
made available to him only on a confidential basis.” “The deterrent effect such
disclosure is likely to have on future ‘undercover’ investigative reporting,”
the court continued, “threatens freedom of the press and the public’s need to be
informed ... [and] undermines values which traditionally have been protected by
federal courts applying federal public policy.”
Like the court in Baker, many federal courts have recognized a
“qualified” newsgathering privilege, that is, a privilege, which can be overcome
in certain circumstances, against testifying or producing information. These
courts have held that such a privilege is rooted in the First Amendment and
supported by the decision in Branzburg. Other federal courts, however,
have rejected the existence of such a privilege, saying that neither the First
Amendment nor Branzburg requires that newsgatherers be treated
differently than other citizens who receive a subpoena.
In response to these contradictory federal court rulings, many state courts
and legislatures have stepped into the fray. Some state courts, for example,
have interpreted the First Amendment and/or their state constitution’s
equivalent to offer protections for newsgatherers. In addition, 35 states and
the District of Columbia have passed laws protecting newsgatherers from
unjustified subpoenas. Such statutes often are referred to as “shield laws.”
Although the privileges recognized by the federal and state courts and
created by the state legislatures vary in detail, most generally provide that
the privileged information cannot be obtained unless the party seeking the
information can establish that:
- The information is highly material and relevant to the case at issue.
- A compelling need exists for the information.
- The information cannot be obtained by other means.
The privileges also differ in the types of information that is protected.
Some privileges, for example, protect only the identity of confidential sources,
while others protect all unpublished information. The privileges also differ in
applicability, as some apply in both criminal and civil cases and others apply
only in civil proceedings.
Shield laws and the newsgatherer’s privilege receive the most attention when
they fail to protect a reporter or author. In these cases, the newsgatherer
usually is ordered to reveal a confidential source or to provide unpublished
information. If the newsgatherer refuses, he or she may be found in contempt of
court and jailed.
Vanessa Leggett, a Houston author, spent 168 days in jail in 2001 and 2002
after she refused to break promises of confidentiality to her sources. In 2005,
then-New York Times reporter Judith Miller spent 85 days in jail before
she agreed to disclose her July 2003 conversations about CIA officer Valerie
Plame with Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter”
Libby. Miller said Libby had released her from her promise of
The Miller case helped to renew and intensify interest in a federal shield
law. There has been a continued effort to pass a shield law at the federal level
since 2004. Over the years, however, the bills have become more and more watered
down. What was once a proposed absolute privilege to protect sources has now, in
its latest proposed version, become a qualified privilege with various
exceptions. Despite the compromises and negotiations to find an acceptable
version, all previous attempts at a federal shield law have died in
A congressional proposal that would give reporters who refuse to reveal
confidential information or sources limited protection in federal court was
passed by the House of Representatives in March 2009. President Barack Obama has
stated that he supports a federal shield law. Meanwhile, the Senate is
considering its own version of the bill.
As more and more newsgatherers work on the national stage — through
television, books and the Internet — the lack of a national newsgatherers
privilege is more and more problematic. Without a national privilege, these
newsgatherers are subject to different and contradictory standards, with little
guidance as to which standard might apply in a particular case. Which state’s
law applies, for example, if a reporter working in one state is subpoenaed to
testify in another state? Or if a reporter promises confidentiality to a source
in a state that protects confidentiality but then is subpoenaed to reveal that
source’s identity in a state that does not recognize the privilege?
These and other similar questions have not yet been answered. Thirty years
after it decided Branzburg, the Supreme Court had the opportunity to
resolve these issues in Leggett’s case. The Court, however, declined to accept
her appeal. In 2005, the high court turned down appeals from Miller and
Time magazine reporter Matthew Cooper, both of whom were seeking to keep
secret their sources in the CIA leak case.
For now, at least, the newsgatherer’s privilege and the issues surrounding it
will continue to evolve at the lower federal court and state levels.
Bill Kenworthy contributed to this article.
Updated August 2009.