Communication Law

The Reporters Privilege: An Analysis

A look into the oft-controversial reporters privilege, which is the right for reporters to tell the news. Special mention is given to the Branzburg v. Hays case, which established the Supreme Court precedent known as the Stewart Test. Further court cases are examined, with the Stewart Test being applied to determine the cases outcomes.

Matt Meier

introduction
The First Amendment of the Constitution guarantees certain basic rights to all citizens of the United States, which among those listed include the freedom of the press: Congress shall make no law abridging the freedom of the press.1 Known as the Freedom of the Press Clause, this particular statement ensures that the government does not intrude upon matters of free press within the United States. Out of the Freedom of the Press Clause was born the controversial concept called the reporters privilege. This privilege, as defined by the Reporters Committee for Freedom of the Press, is the right not to be compelled to testify or disclose sources and information in court.2 As the name implies, the privilege applies to reporters who should not be compelled to disclose certain pieces of information, namely persons of interest who wish to remain unnamed, or reporting material related to a court case. The courts have long battled this notion of the reporters privilege, with decisions largely being scattered as to whether there is truly a privilege or not. Only one Supreme Court case has ruled upon the issue in the past, in

Branzburg v. Hayes, but even then there remains a sense of haziness from the decision.
As of this writing, the issue regarding the reporters privilege is currently being waged in court, in the case United States of America v. Jeffrey Alexander Sterling. Jeffrey Sterling, an ex-CIA agent, is facing charges of leaking classified information to New York Times reporter James Risen.3 Risen was subpoenaed in May of 2011 to testify at Sterlings trial, but Risen has since fought the subpoena, harkening to his reporters privilege: This is a fight to defend the First Amendment and freedom of the press.4 Before delving further into James Risens stance against the court subpoena, it is necessary to enlighten upon some of the history of the reporters privilege, as well as relevant court cases.

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First Amendment The Reporters Privilege 3 Reporters Privilege at Issue in Sterling Leak Case 4 Federal Prosecutors Try To Force New York Times Reporter To Reveal Sources

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brief history of the reporters privilege

While the status of the reporters privilege is contentious throughout the United States, many states have enacted statutes called shield laws that are meant to protect journalists from forced disclosure of confidential sources of information.5 The first such statute was established in 1896 in Maryland; since that time, 30 other states, as well as the District of Columbia, have created similar shield laws.6 While 19 states do not have shield laws in their books, the appellate courts in those states have recognized various kinds of constitutional or common-law testimonial privileges for reporters.7 At times, cases arise that call upon the need of a reporter to disclose information, either an unidentified source or related material to the case, which the court then issues a subpoena to the reporter. If the reporter does not answer to a subpoena, they can be held in contempt of court.8 As defined, the contempt of court is an act of deliberate disobedience or disregard for the laws, regulations, or decorum of a public authority, such as a court or legislative body.9 When the court utilizes their contempt power which is to hold someone in contempt of court they are typically undertaking the measure to protect the authority, order and decorum of the court.10 Since the issue of reporters privilege and subpoenas clash in many court cases, the federal government has established a set of guidelines to for attorneys when seeking subpoenas against a reporter.11 Noted under Title 28 of the Code of Federal Regulations, the prosecutorial power of the government should not be used in such a way that it impairs a reporters responsibility to cover as broadly as possible controversial public issues. 12 One

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Shield law Shield Laws. In Mass Media Law 7 Lower-court Rulings 8 Civil Cases 9 Contempt of Court 10 History of Contempt 11 Federal Guidelines 12 Title 28 CFR Ch. 1

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important aspect of Title 28 includes whether such information a reporter may hold can be obtained from a different source. Should such information cannot be gathered except from the reporter, than a subpoena can be issued.

branzburg v. hayes and subsequent cases

Despite the many cases involving the reporters privilege, the Supreme Court has only ruled once on the matter, during the case Branzburg v. Hayes. While the case that appeared before the Supreme Court was a consolidation of three separate cases, all three shared the same theme of a reporter needing to answer for a subpoena regarding reporting of illicit and illegal activities.13 In narrow 5-4 margin, the Court ruled against the reporters. As stated by the majority opinion of the Court: The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jurys investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.14 While the Supreme Court did rule against the reporters, one member of the majority, Justice Powell, was less than concrete on the ruling. As Justice Powell writes in his opinion, The Court does not hold that newsmen are without constitutional rights with respect to the gathering of news or in safeguarding their sources.15 Though Justice Powells decision favored to the majority of the Court, he still believed that reporters have some level of constitutional protection, as granted under the First Amendment.
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Constitutional Protection of News Sources Branzburg v. Hayes 15 Branzburg v. Hayes & Opinion of Justice Powell

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The remaining justices in the Branzburg v. Hayes case had distinctly different views from the Court majority. Justice Stewart wrote quite starkly that the right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. Justice Stewart further elaborated that subpoenaing reporters could damage the confidential relationship between the source and the reporter, much to the point that the source may not wish to give out further information, or, worse yet, deter reporters from gathering and publishing information.16 Out of the Branzburg v. Hayes case, the four dissenting justices did establish a judicial test called the Stewart Test, after Justice Stewart whom penned the dissenters opinion as a means of determining whether journalists could be forced to testify. The test goes on the assumption that the reporter has qualified privileges, not absolute. Of this test, 1) the reporter has relevant information to a specific violation of the law, 2) the information the reporter holds is the only obtainable information, and 3) there is a supreme interest of the information by the State.17 The Stewart Test would go on to be used in various lower-court rulings, serving as a precedent by which a lower-court could base its decision as to whether a reporter should be subpoenaed. The case of Zerilli v. Smith harkened to the Stewart Test, quoting that if a reporters information is crucial to a litigants case, reporters should be compelled to disclose their sources only after the litigant has shown that he has exhausted every reasonable alternative source of information. In the Zerilli v. Smith case, the motion to subpoena was quashed, citing the earlier Branzburg v. Hayes as justification. (It should be noted that the court stated it was the context of the situation that lead to the quashing of the subpoena. The Supreme Courts opinion in Brandzburg v. Hayes contains much language suggesting that its holding is confined to the grand jury or criminal trial context.)18

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Branzburg v. Hayes & Opinion of Justice Stewart Constitutional Protection of News Sources 18 Zurilli v. Smith

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In the case of U.S. v. Burke, the Stewart Test would again play significant role, this time in defense of a reporter Douglas Looney, who was subpoenaed by a court to give up information he had gathered while interviewing a witness prior to the case. The 2 nd U.S. Circuit Court of Appeals struck down the subpoena, who believed that the information sought was not critical to the case.19 As the summary for U.S. v. Burke puts it, disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.20 There have been examples of the Stewart Test working against reporters other than in

Branzburg v. Hayes, such as the case of U.S. v. Cutler. When Bruce Cutler was held in
contempt of court and sought defense from reporters materials related to the case, subpoenas were issued for said materials. The reporters attempted to quash the subpoenas, but were denied on the grounds that the materials were necessary for Cutlers defense.21 Paragraph 19 of the U.S. v. Cutler case summary would directly quote from the summary of

U.S. v. Burke (as what is written at the end of the previous paragraph of this paper), which
was cited as justification for the subpoenas.22

james risen and the reporters privilege

Returning now to James Risen, who has been fighting his court subpoena since May of 2011. The prosecutors in the case of United States of America v. Jeffrey Alexander Sterling were seeking assistance from Risen, who was given leaked information from Jeffrey Sterling, the ex-CIA agent who disseminated classified information to Risen. Sterling, who worked in the CIA from May 1993 to January 2002, had given information to Risen regarding a covert CIA program called Operation Merlin, which was described a sabotage attempt on Irans nuclear ambitions; Risen used the information to formulate his 2006 book State of War.
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Criminal Cases United States v. Burke 21 Criminal Cases 22 U.S. v. Cutler

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Sterling was later indicted in December 2010 for leaking the classified information to Risen.23
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Since Risens subpoena was issued, the journalist has continually exercised his reporters privilege, going so far as to state that he is determined never to give up his sources even if that means going to jail.24 In a brief filed by Risens attorneys in February 2012, the attorneys made motion to rebuff the subpoena, stating that the Court lacks jurisdiction over this appeal because the orders at issue do not suppress or exclude any evidence at this time.25 The attorneys are essentially aligning with the first part of the Stewart Test; regarding the first potion of the Test, the reporter would need information that the State requires for a case, to which the attorneys are answering that Risen does not have in possession. Reviewing the cases analyzed cited in this document, as well as others otherwise not utilized, James Risen has merit at quashing his subpoena. Going back to the Stewarts Test, I find that the government does not fulfill all three requirements needed for a subpoena. In regards to the second emphasis in the Test (the information the reporter holds is the only obtainable information), the government surely has access to the same information that Risen obtained through Sterling. Now, on the one hand, the government may not be quick to disclose information in relation to clandestine operations in a foreign nation that is considered hostile to the United States, but said information has already largely been leaked and published, which defeats the purpose of maintaining much of operations info as classified. If the government was worried that Iran would learn of black ops occurring on its soil and retaliating against such measures, it would appear that aggressive actions have not occurred since the publishing of Risens book State of War, which called out the operations of the United States. Therefore, such worry of utilizing the classified information in Sterlin gs

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Federal Prosecutors Try To Force New York Times Reporter To Reveal Sources Ex-CIA Officer Charged with Leak to Reporter 25 Brief of Appellee James Risen

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case should then be justified without needing to have James Risen provide testimony in court.

conclusions
While the Freedom of the Press Clause of the First Amendment does have strength throughout the United States, it is by no means a guarantee to the reporters privilege, as a few court cases have shown. While reporters have had luck in battling a subpoena, others have not, given the nature of the case presented. The reporters privilege is not an absolute privilege, as the basis of the Stewart Test from Branzburg v. Hayes affirmed. Determining whether a reporter does hold certain privileges is a process that would need to be reviewed on a case-by-case basis, with certain criteria needing to be fulfilled before a subpoena should be issued. But the Stewart Test, as well as the federal guidelines cited under Title 28, do not always hold the strongest weight when a reporters information is absolutely vital to a case, as was with U.S. v. Cutler. It can be said that the reporters privilege will continue to be a controversial issue in courts in the United States for years to come. Certain actions have been taken place in Congress over the last several years, with proposals being made to create a federal shield law to protect reporters, thereby enforcing the reporters privilege. A current proposal floating in Congress, the Free Flow of Information Act, would protect the identities of reporters confidential sources and the publics right to know.26 The proposal seeks to balance protection for reporters, as well as the publics wish to seek justice just as a prosecutor would seek when submitting a subpoena. The proposal does also echo the Stewarts Test: the reporters privilege is, in fact, a qualification and not an absolute privilege. While the bill has yet to be further moved through Congress, there is hope that a future federal shield law would become enacted, ensuring protection for reporters across the United States.

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Background of the Free Flow of Information Act

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bibliography
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