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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
Feds want judge to force reporters to solve Bonds leak case
'There is no reporter's privilege in criminal cases, under the First Amendment or under common law,' Bush administration lawyers' brief says. 06.22.06
Journalists decry pressure over sources
Groups to help pay for jailed videographer's defense; judge in hearing involving San Francisco Chronicle reporters' sources sounds skeptical of press protections. 08.07.06
9th Circuit allows release of jailed freelancer
Joshua Wolf leaves federal facility; court says it will consider whether he was properly held in contempt when he refused to turn over unaired protest footage. 09.01.06
9th Circuit upholds contempt ruling against freelancer
Like lower court, panel cites 1972 Supreme Court ruling that found everyone, including journalists, is required to appear before grand juries if summoned. 09.12.06
9th Circuit: Freelancer must return to jail
Attorney for video journalist says Joshua Wolf will turn himself in before tomorrow's deadline, continue to appeal. 09.19.06
Videographer denied release; imprisonment enters 3rd month
Joshua Wolf continues to withhold tapes of violent protest; some supporters, unsure he's a journalist, say he still shouldn't be in jail. 11.22.06
Jailed freelancer loses another bid for release
Federal judge says 'confinement may be having its coercive effect,' may prompt Joshua Wolf to turn over footage of 2005 protest. 01.31.07
Calif. videographer becomes longest jailed journalist
Joshua Wolf spends 169th day in jail, surpassing stint of Vanessa Leggett, who served more than five months for refusing to reveal unpublished material about murder case. 02.07.07
After 226 days, freelancer Josh Wolf released from jail
In deal with prosecutors, blogger agreed to turn over uncut video, which he also posted on his Web site yesterday. 04.04.07
Shield law or no, protection of confidential sources uncertain
Proposed measures would offer only modest shelter for journalists who want to withhold identities of those who gave them information. 03.17.08
Ex-prosecutor gets go-ahead to question Detroit reporter
Federal judge rejects David Ashenfelter's bid to protect confidential sources, saying court is bound by precedent set by 6th Circuit, which doesn't recognize journalist's privilege. 09.11.08
Detroit reporter fights order to answer questions about sources
David Ashenfelter asks two judges to stop deposition intended to reveal who leaked information about investigation of terrorism prosecutor. 10.14.08
Detroit reporter skips deposition about unnamed sources
'We waited over an hour for Mr. Ashenfelter to show up. My assumption is we'll move to a contempt process,' says attorney for ex-prosecutor, who's seeking info for lawsuit against government. 10.17.08
Ongoing confidential-sources cases
By Bill Kenworthy Compilation tracking current cases involving efforts to force journalists to disclose confidential sources. 08.04.05
State shield statutes & leading cases
By Bill Kenworthy State-by-state compilation of journalist-shield statutes, cases. 10.17.05
Georgia prevails in case on reporter's privilege
By David L. Hudson Jr. UC-Davis is runner-up in 16th annual competition; hypothetical raised issues from Branzburg v. Hayes. 02.27.06
Protecting reporters' privilege?
By Alicia Armbruster Study finds current version of bill proposing federal shield law would solve key concerns among journalists trying to protect confidential sources. 04.12.07
Track shield laws, subpoenas, confidentiality cases here
Shield laws
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