Reporter's shield laws

[Declan McCullagh]

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."