LESSON 9: THE REPORTER’S PRIVILEGE AND THE GOVERNMENT

WORDS AND PHRASES TO DEFINE

• Reporter‘s privilege
• search warrant
• subpoena
• shield laws
• gag rules
• trial by publicity
• prejudicial
• confidentiality
• search and seizure
• sub judice
• contempt of court
• immunity
• sui generis
• miscarriage of justice
• fair comment

LECTURE AND DISCUSSION

Introduction
In more ways than one, the Philippine journalist is able to get away
with the law. The clear disregard of police orders by journalists during the
Seige of the Manila Peninsula Hotel by recalcitrant, if unwitting soldiers,
would have been a crime against public order. US journalists would not have
been as easily let off as those who were hauled off to Camp Crame and later
set free by an almost apologetic police. Recently, a female journalist who
refused to disclose the source of her information regarding the identity of a
US spy was sent, was sent to jail. She was set free after a three months,
unfazed and unbowed. In Ireland, another journalist was sent to prison for
refusing to divulge the source of her story on an operation of the Irish
Revolutionary Army (IRA).

Law or no law, the decision whether to disclose information given on

oath of confidentiality or not is a judgment call that would face any journalist
at least once in his career.
Discussion
Earlier, we concluded that law or no law, a reporter‘s reputation and
his hard work eventually gets him his story. But what if the court of law
demands that he break his word to his sources? There arises a situation of
conflict of interest between the reporter and the court.

Needless to say, a reporter‘s reputation rests on two factors: the trust

he has earned over time in handling the news and his ability to protect his
news sources. However, when no less than a court of law demands for the
information, a reporter either has to provide the needed information or he is
slapped with a charge of contempt of court, fined, and may even be sent to
jail. Should he refuse to follow court orders, on the other hand, he is likely
to become anathema to his news sources.

The reporter‘s privilege to protect his news source is being given in full
understanding of the need, in fact, the responsibility of the journalist to
protect the sources of his news and which is critical not only to his work but
to the public‘s right to know.

Indeed, this was the argument of Paul Branzburg, reporter of the

Louisville Courier-Journal, a US community paper in which he exposed how
two residents synthesized hashish from marijuana, who refused to testify
before a grand jury on the identity of his news source claiming that such will
violate his First Amendment rights. Ultimately, the case reached the
Supreme Court which ruled that “the First Amendment did not protect
reporters from the obligation of testifying before the grand juries to answer
questions concerning a criminal investigation.” (Dominick, p.392)

To make matters worse, in another case, in 1988, a US jury “granted a

sizable monetary reward in a breach of contract suit in which a man sued a
journalist who had promised him confidentiality and then revealed his
name.” (Dominick, p. 394)

To counter the impact of the US Supreme Court ruling, no less than

the Court recommended the legislation of shield laws that would provide
immunity for reporters in such situations or even provide a reporter‘s
privilege to resist a subpoena. But court rulings after the Supreme Court
decision on the issue, and even with the passage of shield laws, have
become inconsistent.

At the bottom line, the reporter‘s privilege is a damn- if-you-do-and-

damn-if-you-don‘t situation. Dominick concludes that despite the creation of
various shield laws by most states, asserting the reporter‘s privilege to
protect his news sources is “an area where reporters should tread carefully.”

Search and seizure is another area where the reporter‘s privilege to

protect his news source has gotten minimal protection from the law. In the
US, three cases illustrate what Dominick calls ―the troublesome question of
protecting notes and other records that might disclose sources.

The first case happened in 1971 when police officers entered the
premises of the Stanford Daily, the campus paper of Stanford University.
The story goes: “The police produced a search warrant authorizing them to
search and seize pictures of the clash between demonstrators and police
that the Daily had covered the day before. The school brought suit against
the Authorities, charging that its First Amendment rights have been violated.
In 1978, the Supreme Court ruled that the search was legal” (Dominick, p.
394) Two years later, Congress extended protection to newsrooms by
passing a bill requiring Authorities to secure a subpoena in order to obtain
reporters‘ records. The subpoena, points out Dominick, is “somewhat more
limited than that of a search warrant”. (Ibid)

A second case happened in 1974 when Reporters Committee for

Freedom of the Press filed a suit against American Telephone and Telegraph
Company (AT&T) “because the company would not pledge to keep records of
reporters‘ toll calls safe from government scrutiny” which would provide
information on a reporter‘s source of information. The Court of Appeals ruled
that “it was legal for the government to examine such records without the
reporter‘s knowledge and consent”

A third case, involving the New York Times and its reporter, Myron
Farber, who, in 1976, reported on the mysterious deaths by poisoning of five
patients allegedly by a prominent physician. While the physician was indicted
and finally declared innocent, the New York Times and Farber who refused to
submit subpoenaed notes and documents were charged with contempt of
court, and Times was heavily fined while Farber spent 40 days in jail.

Dominick, therefore, cautions reporters that, given the most recent

developments regarding seizure of notes and records, journalists “must
carefully consider these issues when they promise confidentiality to a news
source.”

Trials by publicity and a possible miscarriage of justice are the

nightmare of any judge worth his robe. And this spells the underlying conflict
that continues to face these two institutions of modern society. On one
hand, the courts must ensure the fair administration of justice while, on the
other hand, the press is socially committed to provide information of public
interest.

News stories published before and during the trial can shape public
perception of the defendant that could suggest the person‘s guilt. One need
only recall celebrated cases like the O.G. Simpson case and, here in the
Philippines, the Vizconde Massacre Case to appreciate how cases involving
prominent personalities can sway public sentiments. And in a democratic
society, a person is deemed innocent until proven guilty. As a result of the
courts view that pre-trial publicity could be prejudicial to the accused,
certain restrictive guidelines aimed at press coverage have been enforced by
the courts, called gag rules. Reporters are supposed to obey judicial orders
until these are reversed or suffer the consequences.
In 1984, the US Supreme Court ruled that ―preliminary trial
proceedings must be open to the press unless the judge could demonstrate
a “substantial probability that the defendant‘s right to a fair trial would be
violated.” However, while the print media can in obtrusively cover trial
proceedings that have been opened to the public, television and radio
journalists are somehow put to a disadvantage because the presence of
cameras and tape recorders prove tend “to detract from the dignity of the
proceedings, distract the participants and witnesses giving testimony.”
(Dominick, p. 399)

In the Philippines, the reporting of a case that is pending in court or

sub judice by the press is actionable with contempt. On the issue of news
reportage of on-going trials, the Philippine courts subscribe to US Supreme
Court Justice Malcolm who stated: “The rule is well established that
newspaper publications tending to impede, obstruct, embarrass, or influence
the courts in administering justice in a pending suit or proceeding constitute
criminal contempt which is summarily punishable by the courts. The rule is
otherwise after the case is terminated.” (Katabay and Teodoro, p. 365)

Contempt of court is defined as “some act or conduct which tends to

interfere with the business of the court, by a refusal to obey some lawful
order of the court, or some act of disrespect to the dignity of the court which
in some way tends to interfere with or hamper the orderly proceedings of
the court and thus lessen the general efficiency of the same (In Re: Jones, 9
Phil. 355, 1907) (Ibid, p. 366)

However, as commonly believed, Katabay and Teodoro caution that

“since the case of In Re Brillantes (42 O.G. 59, 1946) the termination of a
case has ceased to be guaranty of immunity from contempt.” (Ibid, p.365)

In two contempt cases decided in 1995, Justice Moran pointed out two
kinds of contempt by reason of publication in relation to courts and its
proceedings: A publication that tends to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit… (and) A
publication which tends to degrade the courts and destroy public confidence
in them or that which tends to bring them in a way into disrepute…
Contempt exists, with or without a pending case as what is sought to be
protected is the court itself and its dignity… Columnist Mauricio Reynoso and
publisher Eva P. Ponce of the Palawan Times were charged with indirect
contempt for an article published after Judge Gacott of the Regional Trial
Court have sentenced a schoolteacher convicted of raping one of his
students to death.

Only the court contemned will punish a given contempt since contempt
proceedings are considered sui generis (of its own kind) with exceptions to
the rule.

Access to News Scenes by reporters has little support from the courts
“in separate rulings, the courts have declared that journalists could be sued
for invasion of privacy, for trespassing on private property, and for
disobeying a police officer‘s legitimate command to clear the way at the
scene‖ of a crime. (Dominick, p. 401) At the least, Dominick views court
decisions on this issue to be at a developmental stage. “It is clear that in
news-gathering activities, the press often collides with the government,‖ he
sums up. (Ibid, p. 402)

Summary
The principle of fair comment is the key to freeing oneself from liability
for contempt. While free speech is guaranteed by the Constitution and must
be “sacredly guarded,” it is now a legal doctrine that “the liberty of the press
is subordinate to the independence of the judiciary and the proper
administration of justice.”