Judges vs. Journalists 1

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Judges vs. Journalists 1

• In wake of the President Being Reelected for
  four more years, a source comes forward with some
  interesting news about the Vice President. His
  Personal trainer, John Buffnstuff calls you and
  tells you that the VP was confided in him that he
  had used to smoke marijuana cigarettes in the
  70s, and asked if that would affect his cardio
  training.
• You interview J.B. and are writing the story
  when he calls you and asks to remain anonymous,
  so he wont loose his job. Your editor refuses to
  print it without his name, and smelling fame, you
  cave in.
• J.B. loses his job as a result, the VP denies
  everything, saying he said they were his
  girlfriend Mary Jo Annas, not pot. J.B. is suing
  your paper for 1 million dollars.

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Judges vs. Journalists 2

• You are a freelance journalist, working under
  contract for the Salt Lake City Tribune. You meet
  with a source, who you swore you would not
  reveal, who tells you the location of major crack
  house in the aptly named neighborhood,
  sugarhouse.
• The Trib publishes your story on High-class Crack
  Addicts. The police, acting on your story, raid
  the house and find a dead body. They want you to
  reveal your source, they claim it is vital for
  the murder investigation.
• The murder goes to trial. The police interview
  140 people in connection with the crime.
  Prosecution has asked the court to subpoena you
  and have you give your source. You are refusing.

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Judges vs. Journalists 3

• Paris Hilton was arrested in Park City for
  assaulting a freelance photographer by beating
  him with her purse. She is also being charged
  with animal abuse, as her dog was in the purse at
  the time.
• The judge declares that no photos are allowed to
  be taken in the court room, due to Ms. Hiltons
  possible violent response and to protect her
  image. (Your editor thinks neither of these would
  hold up as rational in an appeal).
• You are reporting on the case, you snap a picture
  and it is on the front page of the City Weekly.
  You are charged by the court with contempt.

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Why Protect Your Sources and Notes?

• Promises, Promises Some sources wont talk
  unless you promise them confidentiality. To
  renege on a promise is to risk a lawsuit filed by
  the source.
• Watchdogs, Not Lapdogs The government should
  do its own investigation, not rely on your
  information. Journalists are watchdogs on the
  government, not lapdogs.

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The High Costs of Protection

• Journalists who refuse to comply with subpoenas
  requesting notes and/or the names of confidential
  sources risk contempt and jail.

Vanessa Leggett Spent more than five months in
jail in 2001 for refusing to turn over notes from
an interview regarding a murder
investigation. Leggett v. US
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Failing to Keep A Promise Promissory Estoppel
Civil Liability

• Cohen v. Cowles Media The First Amendment does
  not shield journalists from lawsuits or civil
  liability when they breach promises of
  confidentiality to their sources.

This case . . . is . . . controlled by the
equally well-established line of decisions
holding that generally applicable laws do not
offend the First Amendment simply because their
enforcement against the press has incidental
effects on its ability to gather and report the
news.
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Promissory Estoppel

• The legal theory on which the plaintiff in
  Cohen v. Cowles Media prevails after journalists
  breached promises of confidentiality to him.
• The theory allows courts to enforce promises,
  even though there is no legally binding contract,
  in order to avoid injustice.

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Promissory Estoppel Four Key Elements

• A plaintiff usually must prove four basic
  elements in order to prevail in an action for
  promissory estoppel

1. The defendant made a clear and definite
promise to the plaintiff 2. The defendant
intended to induce the plaintiffs reliance on
that promise 3. The plaintiff reasonably relied
on the promise to his or her detriment and 4.
The promise must be enforced in the interests of
justice to the plaintiff.
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Sources of Protection For News Sources
Information

• 1. U.S. Constitution

• Seminal Supreme Court case Branzburg v. Hayes
• Scope of protection varies depending upon the
  type of proceeding (grand jury, criminal case,
  civil case), the appellate jurisdiction in which
  the case in question arises, and the nature of
  the information.

2. State Legislation

• 31 states now have shield laws that provide
  varying degrees of protection to journalists who
  seek to keep confidential sources and information.

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Newsroom Searches

• 1. Seminal Case Supreme Court case
• Zurcher v. Stanford Daily

2. Critical Federal Law Privacy Protection Act
of 1980
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The Contempt Power

• 1. Contempt
• 2. First Amendment Limitations
• 3. Collateral Bar Rule

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Online Resource for Journalists Regarding
Protection of Sources

• The Reporters Committee for Freedom of the Press
  has several very worthy online publications that
  can be found on its homepage. These include

Agents of Discovery A Report on the Incidence
of Subpoenas Served on the News
Media www.rcfp.org/agents/index.html The
Reporters Privilege www.rcfp.org/privilege/index
.html