At 02:33 PM 8/25/01 -0700, Tim May wrote:
As we've discussed before (and Declan is in agreement), the First Amendment doesn't give some specific class of people ("reporters") special rights not held by everyone.
Right. Especially nowadays, anyone can be a reporter/commentator. I do encourage Tim to apply for CFP press credentials and report back on what happens. I suspect most folks on the program committee are at least passingly familiar with what he's written, so he should get the most receptive audience possible.
_Some_ states have passed what I think are wholly unconstitutional "shield laws" conferring special privileges on officially-recognized journalists and reporters. Some states do not have such shield laws. I don't know what laws Washington state has.
My understanding is that it doesn't matter since U.S. v. Jim Bell was a federal prosecution.
The whole notion that Declan is an Official Reporter but that John Young is not stinks. And if John Young is a reporter, with special rights to not reveal his sources or contacts, then so is Tim May.
I agree that John Young should be considered a reporter. And also a commentator, which falls under the journalism umbrella: John and I both spoke at a conference organized by a journalist-1A group, the Freedom Forum, in NYC. John spoke last week at Usenix Security in DC. John now seems to be saying anything-you-tell-me-will-be-disclosed, but in the past he's offered guarantees of confidentiality (as I do with news tips) to people who provide him with documents to post on cryptome. Many cryptome items are marked as "provided by anonymous." If John gets a subpoena, surely he doesn't mean he'll spill his guts to prosecutors without a fight? If he doesn't stand by cryptome's apparent promises of confidentiality, he should clarify that immediately and publicly. Anyway, I do think the scope of civil and criminal discovery is too broad. Still, I think it's possible to differentiate between people involved or suspected of being involved in a criminal act (Clinton, Tripp, Condit, perhaps Vinnie, in your example) and neutral observers and commentators.
I doubt that "a reporter's First Amendment rights" entered into the calculation in a primary way (though perhaps in a secondary way, as it was a potential can of worms not worth opening for the limited probative value of Declan's remembrances of a phone conversation.)
Maybe, maybe not. You should read our briefs. See below. -Declan A. The Burden Imposed By Subpoenas Such As The One At Issue Here Has Caused The Courts To Extend The Privilege To Unpublished Information In Branzburg v. Hayes, 408 U.S. 665, 707 (1972), the United States Supreme Court recognized that journalists' newsgathering activities qualify for protection under the First Amendment to the United States Constitution. The Court concluded that "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681. Justice Powell, in casting the deciding fifth vote, stated that "[t]he Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in the safeguarding of their sources." Id. at 709 (Powell, J., concurring). Although the Court did not permit the reporters in the Branzburg case to refuse to appear and testify before grand juries, federal courts have interpreted Branzburg as recognizing a qualified privilege that protects information gathered by journalists in preparation for new s reports, but which has not been published. See, e.g., Cuthbertson I, 630 F.2d at 146-47; Von Bulow v. Von Bulow, 811 F.2d 136, 143 (2d Cir. 1987); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988). The United States Court of Appeals for the Ninth Circuit has recognized this First Amendment privilege in the context of criminal proceedings, Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976), and has held that the privilege protects unpublished information, even if it is not obtained under an agreement of confidentiality, Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993) ("Shoen I"). A court must weigh any claim of First Amendment privilege against the need for disclosure and strike a balance in favor of the "paramount interest." Farr, 522 F.2d at 468. The Ninth Circuit explained in Shoen I that "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.'" 5 F.3d at 1292 (quoting Herbert v. Lando, 441 U.S. 153, 183 (Brennan, J., dissenting).). Protection of unpublished information is critical to freedom of speech, even where it is not gained under a promise of confidentiality, because routine demands for such information in court will interfere with journalists' work and independence. The Ninth Circuit stated: "The . . . four interests named are the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; and the burden on journalists' time and resources in responding to subpoenas." . . . To the extent that compelled disclosure becomes commonplace, it seems likely indeed that internal policies of destruction of materials may be devised and choices as to subject matter made, which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment. In addition, frequency of subpoenas would not only preempt the otherwise productive time of journalists and other employees but measurably increase expenditures for legal fees. Id. at 1294-95 (quoting LaRouche Campaign, 841 F.2d at 1182). The Ninth Circuit concluded that requiring journalists to testify impedes their ability to collect information, and thereby chills speech. "It is their independent status that often enables reporters to gain access, without a pledge of confidentiality, to meetings or places where a policeman or a politician would not be welcome. If perceived as an adjunct of the police or of the courts, journalists might well be shunned by persons who might otherwise give them information without a promise of confidentiality, barred from meetings which they would otherwise be free to attend and to describe, or even physically harassed if, for example, observed taking notes or photographs at a public rally. Id. at 1295 (quoting Duane D. Morse & John W. Zucker, The Journalist's Privilege in Testimonial Privileges (Scott N. Stone & Ronald S. Liebman eds., 1983), at 474-75). The Third Circuit reached the same conclusion in Cuthbertson, a criminal case: We do not think that the privilege can be limited solely to protection of sources. The compelled production of a reporter's resource materials can constitute a significant intrusion into the newsgathering and editorial processes. See Loadholtz v. Fields, 389 F. Supp. 1299, 1303 (M.D. Fla. 1975). Like the compelled disclosure of confidential sources, it may substantially undercut the public policy favoring the free flow of information to the public that is the foundation for the privilege. See Riley v. City of Chester, [612 F.2d 708, 716 (3d Cir. 1979)]. Therefore, we hold that the privilege extends to unpublished materials in the possession of CBS. See Altemose Construction Co. v. Building & Construction Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977) ("this qualified privilege can even apply when the news source and, perhaps, a portion of the withheld writing, are not confidential"). Cuthbertson, 630 F.2d at 147. Democracy's keystone is the dissemination of information to the public, permitting it to make informed choices. This dissemination depends on journalists who are successful in gathering facts, and that, in turn, depends on sources who will not disclose information unless they believe they are dealing with professionals who are trustworthy and objective. By compelling a journalist to disclose work product whenever a litigant views it as helpful to his or her case, a court sacrifices the very First Amendment freedoms that keep our nation informed and our government accountable. B. The First Amendment Privilege Can Be Overcome In Only The Most Limited Of Circumstances Recognizing the threat that compulsory disclosure of work product posed to the uninhibited flow of information, the Ninth Circuit adopted a three-part test that courts must apply whenever a journalist withholds unpublished information that was not gained under a promise of confidentiality. The test's purpose, the court explained, was to "ensure that compelled disclosure is the exception, not the rule." Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ("Shoen II"). We . . . hold that where information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. We note that there must be a showing of actual relevance; a showing of potential relevance will not suffice. Id. Although the Ninth Circuit has not had the opportunity to apply the three-part test of Shoen II in a criminal case, the Third Circuit has adopted a nearly identical test and applied it to a criminal subpoena that sought unpublished, nonconfidential information: "First, the movant must demonstrate that he has made an effort to obtain the information from other sources. Second, he must demonstrate that the only access to the information sought is through the journalist and her sources. Finally, the movant must persuade the Court that the information sought is crucial to the claim." United States v. Cuthbertson, 651 F.2d 189, 195-96 (3d Cir.) ("Cuthbertson II") (quoting United States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980), cert. denied, 449 U.S. 113 (1981)), cert. denied, 454 U.S. 1056 (1981). Application of the First Amendment privilege in a criminal proceeding is just as important as in a civil context. As the Second Circuit held in United States v. Burke, 700 F.2d 70, 76 (2d Cir.), cert. denied, 464 U.S. 816 (1983): "[T]he 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."