When anyone can publish, who's a journalist now?

[Anuj Desai]

Declan,

Your readers might be interested in knowing that many courts have been
forced to deal with the question, "Who is a journalist?" over the years in
circumstances similar to what appear to be Ms. Leggett's.  Several states
have laws, known as shield-laws, that specifically protect journalists from
testifying in certain circumstances, and those laws often contain
definitions of "journalist" or "reporter" or "media".  In addition, the
First
Amendment provides a separate protection.

In the statutory context, the courts are of course bound by the legislative
definitions of who is a journalist.  These definitions vary from state to
state, but in most states depend upon some sort of professional affiliation.

Under the First Amendment, however, courts have been much broader, focusing
primarily on whether the person claiming the journalist's privilege had an
intent to disseminate the information to the public **at the time s/he
gathered it**.  Bearing in mind the Supreme Court's admonition that "Freedom
of the press is a 'fundamental personal right' which is not confined to
newspapers and periodicals.  It necessarily embraces pamphlets and leaflets.
...  The press in its historic connotation comprehends every sort of
publication which affords a vehicle of information and opinion,'"  Branzburg
v. Hayes, 408 U.S. 665, 704 (1972) (quoting Lovell v. City of Griffin, 303
U.S. 444, 450, 452 (1938)), courts have been unwilling to restrict press
rights to the institutional press.  Although the Supreme Court has never
directly addressed the question, "Who is a journalist?" in the context of
the journalist's privilege (indeed, the fear that courts would have to deal
with it was part of the majority's rationale for *not* granting the
privilege in the seminal Branzburg case), many federal courts have addressed
it, with
varying results depending on the circumstances.  See, e.g., In re Madden,
151 F.3d 125 (3d Cir. 1998); Schoen v. Schoen, 5 F.3d 1289, 1293-94 (9th
Cir. 1993); Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir.), cert. denied,
481 U.S. 1015 (1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.
1977); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993); Apicella v. McNeil
Labs., Inc., 66 F.R.D. 78, 84-85 (E.D.N.Y. 1975).

This is not to say that answering the question is simple in any give
circumstance, but simply to note that courts have been doing it for a long
time.

One other point that should be clarified in light of this post is that, in
every jurisdiction, the journalist's privilege is a *qualified* privilege
and yields to the needs of evidence-gathering in many cases.  No one, not
even a New York Times reporter [I use the NYT rather than Wired because we
know that some would question your own status as a journalist :-) ], gets
the
privilege in every circumstance.  The person attempting to force a
journalist to testify in the face of the privilege simply has to show that
1) the information they seek is relevant to the lawsuit for which they are
seeking it; 2) their suit is not frivolous; and 3) they have exhausted all
other reasonable means of obtaining the information (or some other similar
variation of this three-part test).  So, even having a broad definition of
"journalist" does not completely open the door to an unfettered right to
refuse to testify.

-Anuj

Anuj C. Desai
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
acdesai at facstaff.wisc.edu

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