Protection of News Sources Communication Law in America 6/23/2018 Protection of News Sources Chapter 9 Chapter 9: Protection of News Sources

Protection of News Sources Edward Snowden unusual whistleblower: “outs” himself Chapter 9 Protection of News Sources

Reporters who went to Jail Communication Law in America 6/23/2018 Reporters who went to Jail Time reporter Matthew Cooper (left) avoids jail time when his source (Scooter Libby, right) releases him from his pledge of confidentiality. Judith Miller & Vanessa Leggett (jailed for refusing to reveal sources) Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Use Espionage Act against reporters? Communication Law in America 6/23/2018 Use Espionage Act against reporters? Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Protection of News Sources “Mary Richards” See relevant scenes from the episode Chapter 9 Protection of News Sources

Protection of News Sources Breaking the Code On the record = Use it, and say from whom Chapter 9 Protection of News Sources

I didn’t say what they said I said Breaking the Code Off the record = don’t quote (or paraphrase, or even make reference to the actual interview?) I didn’t say what they said I said Chapter 9 Protection of News Sources

Protection of News Sources Breaking the Code On background = make allusions only to a vaguely described source “…according to a source clearly in a position to know…” Chapter 9 Protection of News Sources

Breaking the Code On deep background = no attribution at all, but can use information “…CNN has learned…” (through intense meditation?) Chapter 9 Protection of News Sources

Communication Law in America 6/23/2018 Branzburg v. Hayes (Paul Branzburg) Louisville Courier reporter Wrote stories about “drug synthesizers” Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Communication Law in America 6/23/2018 Branzburg v. Hayes Local DA’s wanted him at grand jury He argues…. He should not have to reveal his sources He should not have to appear at all Supreme Court [White] rules against him Justice Byron White Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

White’s Branzburg opinion Communication Law in America 6/23/2018 White’s Branzburg opinion No reporter exemption from citizen duties Better to do something about crime than just to write about it States and Congress may pass reporter shield laws if they want Who is a “reporter,” anyway? Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Protection of News Sources Is a blogger covered? Chapter 9 Protection of News Sources

Still more on Branzburg v. Hayes Communication Law in America 6/23/2018 Still more on Branzburg v. Hayes Powell concurrence No fishing expeditions Douglas, Stewart dissents… “Dissidents” “Public spirited person inside government…” Stewart’s dissent gives some rules Lower courts have adopted these when they can Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Justice Stewart’s rules Communication Law in America 6/23/2018 Justice Stewart’s rules Reporter likely has the info Compelling interest in getting it Can’t get it elsewhere Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Aftermath of Branzburg Communication Law in America 6/23/2018 Aftermath of Branzburg Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Reporters likely to testify if: Communication Law in America 6/23/2018 Reporters likely to testify if: Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Reporters likely to testify if: Communication Law in America 6/23/2018 Reporters likely to testify if: Reporter witnessed things with own eyes Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Reporters likely to testify if: no confidentiality had been pledged Communication Law in America 6/23/2018 Reporters likely to testify if: no confidentiality had been pledged This was crucial to the Crude case Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Reporters likely to testify if: the reporter is defendant Communication Law in America 6/23/2018 Reporters likely to testify if: the reporter is defendant Rodney Dangerfield sues Star tabloid for libel Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Communication Law in America 6/23/2018 Reporters likely to testify if: “reporter “ is not really a reporter, or reason for writing is not journalistic Andrea Reynolds and Claus Von Bulow Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Communication Law in America 6/23/2018 Reporters likely to testify if: “reporter “ is not really a reporter, or reason for writing is not journalistic Vanessa Leggett Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Otherwise, courts follow Stewart Communication Law in America 6/23/2018 Otherwise, courts follow Stewart Reporter likely has the info Compelling interest in getting it Can’t get it elsewhere Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Central Park Five case Ken Burns covered as reporter Chapter 9 Protection of News Sources

Reporter privilege not applied to publisher (New York Post) Chapter 9 Protection of News Sources

Protection of News Sources First Military court to use Branzburg CBS must hand over Wuterich interview outtakes Chapter 9 Protection of News Sources

Reporter Shield Statutes (most states have them) Communication Law in America 6/23/2018 Reporter Shield Statutes (most states have them) Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Communication Law in America 6/23/2018 Variety Who is covered? Must confidentiality have been explicitly promised? What kinds of information are protected? From what forums? (can include grand juries) Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Alabama shield law covered newspaper, not magazines Chapter 9 Protection of News Sources

Communication Law in America 6/23/2018 DOJ standards Two admonitions Make “all reasonable attempts” to get info elsewhere Make sure that the info is “essential” No remedies provided Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Zurcher v. Stanford Daily Communication Law in America 6/23/2018 Zurcher v. Stanford Daily Newsroom Searches No “third party exception” for newsrooms Strongly worded dissent from Stewart & Marshall Search of campus paper’s office Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Privacy Protection Act Communication Law in America 6/23/2018 Privacy Protection Act Not a Search Warrant Use a subpoena Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Exceptions for Work Product Communication Law in America 6/23/2018 Exceptions for Work Product Reporter is NOT a “third party” Death or serious physical harm National security Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

Additional exceptions for Documentary Materials Communication Law in America 6/23/2018 Additional exceptions for Documentary Materials You will destroy the evidence History of disobeying subpoenas Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources

The “murder on tape” case Video at issue in Citicasters v. McCaskill Chapter 9 Protection of News Sources

The “murder on tape” case (Senator) Claire McCaskill The tourists later sell the video to WDAF-TV. Then-DA Claire McCaskill directs the police to search the station. Chapter 9 Protection of News Sources

The “murder on tape” case (Senator) Claire McCaskill A federal appellate court found no violation of the Privacy Protection Act. Chapter 9 Protection of News Sources

Cowles Publishing v. Cohen Communication Law in America 6/23/2018 Cowles Publishing v. Cohen Promised confidentiality Betrayed Source Dan Cohen Damages for fraud Chapter 9 Protection of News Sources Chapter 9: Protection of News Sources