The First Amendment and Press Shield Laws

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The First Amendment and Press Shield Laws

• Paul C. Watler
• Jackson Walker LLP
• pwatler_at_jw.com

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The First Amendment and Press Shield Laws

• Freedom of the press under the First Amendment

• Does the First Amendment include a privilege
  for journalists against compelled testimony about
  news sources or news gathering?

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The First Amendment and Press Shield Laws

• A. Freedom of the press under the First Amendment

A guarantee of freedom of the press was included
by the Founders in the Bill of Rights
Congress shall make no law abridging the
freedom of the press
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The First Amendment and Press Shield Laws
Congress shall make no law abridging the
freedom of the press

• What do these words mean in the law?
• http//www.youtube.com/watch?veeVrzrmgitQ

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The First Amendment and Press Shield Laws

• Drafters of the Bill of Rights embraced the
  notion, derived from William Blackstone, that a
  freepress may not belicensed by thesovereign,
  or otherwiserestrained in advanceof publication

1. No prior restraint
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The First Amendment and Press Shield Laws

• Chief purpose of the free press clause is to
  prevent previous restraints upon publication.
• Near v. Minnesota (U.S. 1931)

1. No prior restraint
Any system of prior restraints of expression
comes to this Court bearing a heavy presumption
against its constitutional validity. New
York Times Co. v. United States, U.S. 1971
(Pentagon Papers case).
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The First Amendment and Press Shield Laws

• Supreme Court constitutionalized libel law as
  applied to the press in New York Times Co. v.
  Sullivan (U.S. 1964)
• Central meaning of the First Amendment A
  profound national commitment that "debate on
  public issues ... should be ... uninhibited,
  robust, and wide-open."

2. Limits on defamation liability
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The First Amendment and Press Shield Laws

• Constitution prohibits a public official from
  recovering for libel relating to his official
  conduct unless he proves that the statement was
  made with 'actual malice' with knowledge that
  it was false or with reckless disregard of
  whether it was false or not.

2. Limits on defamation liability
New York Times Co. v. Sullivan (U.S. 1964)
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The First Amendment and Press Shield Laws

• Does the First Amendment include a privilege
  for journalists against compelled testimony about
  news sources or news gathering?

• The First Amendment and
• Reporters Privilege

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The First Amendment and Press Shield Laws

• Journalists subpoenaed to testify before grand
  juries.
• One of the cases involved a reporter refusing to
  disclose the identity of confidential sources to
  a grand jury.
• Reporters contended that they were shielded by a
  privilege under the First Amendment.

Branzburg v. Hayes (U.S. 1972)
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The First Amendment and Press Shield Laws

• Justice Byron White framed the question
• The issue in these cases 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.

Branzburg v. Hayes (U.S. 1972)
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The First Amendment and Press Shield Laws

• Without some protection for seeking out the
  news, freedom of the press could be eviscerated.
  
• However . . .
• We perceive no basis for holding that the public
  interest in grand jury proceedings is
  insufficient to override the burden on news
  gathering from insisting that reporters, like
  other citizens, respond to relevant questions
  in the course of a valid grand jury investigation
  or criminal trial.

Branzburg v. Hayes (U.S. 1972)
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The First Amendment and Press Shield Laws
Branzburg v. Hayes (U.S. 1972) But Justice
White left the First Amendment door slightly
ajar.

• 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 reporters
  relationship with his news sources would have no
  justification.

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The First Amendment and Press Shield Laws

• If the newsman is called upon to give
  information bearing only a remote and tenuous
  relationship to the subject of the investigation,
  or if 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.

Branzburg v. Hayes (U.S. 1972) Justice Powells
concurrence
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The First Amendment and Press Shield Laws

• Recognized First Amendment privilege
• I would hold that the government must (1) show
  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.

Branzburg v. Hayes (U.S. 1972) Justice Stewarts
dissenting opinion
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The First Amendment and Press Shield Laws

• Four dissenters plus Powells concurrence all
  found First Amendment support for some form of a
  reporters privilege.
• Created an apparent majority for a First
  Amendment privilege.
• Or at least, that was the face of Branzburg in
  many lower court decisions during the next two
  decades.

Branzburg v. Hayes (U.S. 1972)
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The First Amendment and Press Shield Laws

• Branzburg recognized news gathering deserves some
  First Amendment protection.
• Justice Powell concurring opinion stated that
  courts can determine whether a privilege applies
  by using a balancing test.
• Thus a qualified privilege available, even where
  a reporter is called before a grand jury to
  testify.

Post-Branzburg Zerilli v. Smith, 656 F.2d 705
(D.C. Cir. 1981).
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The First Amendment and Press Shield Laws

• We decline to take Justice Powells concurrence
  as a mandate for qualified news reporters
  privilege in criminal cases.
• Powell only emphasized that at a certain point,
  the First Amendment protects the press from
  government.
• To Powell, that point occurs when the grand jury
  investigation is not being conducted in good
  faith.

Post-Branzburg United States v. Smith, 135
F.3d 963, 969 (5th Cir. 1998).
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The First Amendment and Press Shield Laws

• Justice White in Branzburginvited legislative
  solution
• Many enacted in 1970s 80s

C. Shield Law Statutes

• More recently, conflicting interpretations of
  Branzburgand high profile journalist contempt
  cases also spurred adoption of statutory shield
  laws

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The First Amendment and Press Shield Laws
C. Shield Law Statutes Recent high profile
journalist contempt cases

• Balco / MLB steroids investigation SF Chronicle
  reporters cited for contempt for refusing to
  disclose source of leaked grand jury transcripts
  in Barry Bonds case. http//www.youtube.com/watch?
  vNH4i7dXBGO8

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The First Amendment and Press Shield Laws
C. Shield Law Statutes Recent high profile
journalist contempt cases

• Valeri Plame NYT reporter Judy Miller jailed
  for 85 days for refusing to identify White House
  source who outed undercover CIA agent.
• Wen Ho Lee Non-party news organizations pay to
  settle nuclear scientists privacy case after
  reporters ordered to disclose confidential
  sources.
• Vanessa Legget Houston book author jailed for
  168 days for refusing to testify before federal
  grand jury investigating murder for hire.
• Grand jury cases rejected First Amendment
  privilege civil case applied it narrowly to
  overcome privilege.

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The First Amendment and Press Shield Laws

• Generally most provide a qualified rather than
  absolute privilege
• Journalist testimony not compelled unless the
  party seeking the information shows
• Information is highly material and relevant.
• Compelling need.
• Information not available by other means.
• (Compare with Justice Stewarts dissent.)

C. Shield Law Statutes 35 states and DC
have adopted some form
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The First Amendment and Press Shield Laws

• Protects confidential sources only in some.
• Unpublished information also protected in others.
  
• Some apply in both criminal and civil cases
• Others apply only in civil proceedings.

C. Shield Law Statutes Differ
state-to-state in protections.
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The First Amendment and Press Shield Laws

• October 2007, U.S. House passed the Free Flow of
  Information Act (H.R. 2102) by 398 to 21.
• Senate Judiciary Committee approved similar
  provision (S. 2035).
• Both provide a qualified privilege to reporters
  that would apply in criminal and civil contexts.
  
• Senate version protects only the identity of
  confidential sources and records.
• House bill extends protection not only to
  confidential sources and to documents or
  information obtained during the newsgathering
  process.

• Shield Law Statutes
• Federal Legislation

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The First Amendment and Press Shield Laws

• Texas Free Flow of Information Act (SB 966)
• Passed by the Senate in 2007
• But died in the House in the last days of the
  80th regular session
• objection on a point of order.
• Qualified privilege against compelled court
  testimony or disclosure of confidential sources.

C. Shield Law Statutes

• Reporters' work products, such as notes and
  tapes, would also have been protected by this
  limited privilege.

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The First Amendment and Press Shield Laws

• D. Conclusion

• Does the First Amendment include a privilege
  for journalists against compelled testimony about
  news sources or news gathering?

• Yes, in some circuits and states.
• Mostly civil cases.
• Branzburg the last word in the grand jury
  context?
• Shield law statutes may fill the gap.