The First Amendment and Press Shield Laws Paul C. Watler Jackson Walker LLP

The First Amendment and Press Shield Laws Freedom of the press under the First’ Amendment Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering?Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering?

The First Amendment and Press Shield Laws A.Freedom of the press under the First Amendment “Congress shall make no law … abridging the freedom … of the press” A guarantee of freedom of the press was included by the Founders in the Bill of Rights

The First Amendment and Press Shield Laws What do these words mean in the law? “Congress shall make no law … abridging the freedom … of the press”

The First Amendment and Press Shield Laws Drafters of the Bill of Rights embraced the notion, derived from William Blackstone, that a free press may not be licensed by the sovereign, or otherwise restrained in advance of publicationDrafters of the Bill of Rights embraced the notion, derived from William Blackstone, that a free press may not be licensed by the sovereign, or otherwise restrained in advance of publication 1. No prior restraint

The First Amendment and Press Shield Laws “Chief purpose” of the free press clause is “to prevent previous restraints upon publication.”“Chief purpose” of the free press clause is “to prevent previous restraints upon publication.” – Near v. Minnesota (U.S. 1931) 1. No prior restraint “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.““Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.“ –New York Times Co. v. United States, U.S (Pentagon Papers case).

The First Amendment and Press Shield Laws Supreme Court “constitutionalized” libel law as applied to the press in New York Times Co. v. Sullivan (U.S. 1964)Supreme Court “constitutionalized” libel law as applied to the press in New York Times Co. v. Sullivan (U.S. 1964) –“Central meaning” of the First Amendment: A “profound national commitment” that "debate on public issues... [should be]... uninhibited, robust, and wide-open." 2. Limits on defamation liability

The First Amendment and Press Shield Laws “Constitution prohibits a public official from recovering for [libel] relating to his official conduct unless he proves that the statement was made with 'actual malice' — with knowledge that it was false or with reckless disregard of whether it was false or not.”“Constitution prohibits a public official from recovering for [libel] relating to his official conduct unless he proves that the statement was made with 'actual malice' — with knowledge that it was false or with reckless disregard of whether it was false or not.” 2. Limits on defamation liability – New York Times Co. v. Sullivan (U.S. 1964)

The First Amendment and Press Shield Laws Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering?Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering? B.The First Amendment and Reporter’s Privilege

The First Amendment and Press Shield Laws Journalists subpoenaed to testify before grand juries.Journalists subpoenaed to testify before grand juries. One of the cases involved a reporter refusing to disclose the identity of confidential sources to a grand jury.One of the cases involved a reporter refusing to disclose the identity of confidential sources to a grand jury. Reporters contended that they were shielded by a privilege under the First Amendment.Reporters contended that they were shielded by a privilege under the First Amendment. Branzburg v. Hayes (U.S. 1972)

The First Amendment and Press Shield Laws Justice Byron White framed the question:Justice Byron White framed the question: “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.” “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.” Branzburg v. Hayes (U.S. 1972)

The First Amendment and Press Shield Laws “Without some protection for seeking out the news, freedom of the press could be eviscerated.”“Without some protection for seeking out the news, freedom of the press could be eviscerated.” However...However... “We perceive no basis for holding that the public interest in … grand jury proceedings is insufficient to override the … burden on news gathering … from insisting that reporters, like other citizens, respond to relevant questions … in the course of a valid grand jury investigation or criminal trial.” “We perceive no basis for holding that the public interest in … grand jury proceedings is insufficient to override the … burden on news gathering … from insisting that reporters, like other citizens, respond to relevant questions … in the course of a valid grand jury investigation or criminal trial.” Branzburg v. Hayes (U.S. 1972)

The First Amendment and Press Shield Laws “[G]rand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.”“[G]rand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.” Branzburg v. Hayes (U.S. 1972) But Justice White left the First Amendment door slightly ajar.

The First Amendment and Press Shield Laws “If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if … his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash.”“If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if … his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash.” Branzburg v. Hayes (U.S. 1972) Justice Powell’s concurrence

The First Amendment and Press Shield Laws Recognized First Amendment privilegeRecognized First Amendment privilege “I would hold that the government must (1) show … that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.”“I would hold that the government must (1) show … that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.” Branzburg v. Hayes (U.S. 1972) Justice Stewart’s dissenting opinion

The First Amendment and Press Shield Laws Four dissenters plus Powell’s concurrence all found First Amendment support for some form of a reporter’s privilege.Four dissenters plus Powell’s concurrence all found First Amendment support for some form of a reporter’s privilege. Created an apparent majority for a First Amendment privilege.Created an apparent majority for a First Amendment privilege. Or at least, that was the face of Branzburg in many lower court decisions during the next two decades.Or at least, that was the face of Branzburg in many lower court decisions during the next two decades. Branzburg v. Hayes (U.S. 1972)

The First Amendment and Press Shield Laws Branzburg recognized news gathering deserves some First Amendment protection.Branzburg recognized news gathering deserves some First Amendment protection. Justice Powell concurring opinion stated that courts can determine whether a privilege applies by using a balancing test.Justice Powell concurring opinion stated that courts can determine whether a privilege applies by using a balancing test. Thus a qualified privilege available, even where a reporter is called before a grand jury to testify.Thus a qualified privilege available, even where a reporter is called before a grand jury to testify. Post-Branzburg Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981).

The First Amendment and Press Shield Laws “We decline” to take Justice Powell’s concurrence as a mandate for qualified news reporters’ privilege in criminal cases. “We decline” to take Justice Powell’s concurrence as a mandate for qualified news reporters’ privilege in criminal cases. Powell only emphasized that at a certain point, the First Amendment protects the press from government. Powell only emphasized that at a certain point, the First Amendment protects the press from government. To Powell, that point occurs when the grand jury investigation is not being conducted in good faith. To Powell, that point occurs when the grand jury investigation is not being conducted in good faith. Post-Branzburg United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998). United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998).

The First Amendment and Press Shield Laws Justice White in Branzburg invited legislative solutionJustice White in Branzburg invited legislative solution Many enacted in 1970s – 80s Many enacted in 1970s – 80s More recently, conflicting interpretations of Branzburg and high profile journalist contempt cases also spurred adoption of statutory shield lawsMore recently, conflicting interpretations of Branzburg and high profile journalist contempt cases also spurred adoption of statutory shield laws C. Shield Law Statutes

The First Amendment and Press Shield Laws Balco / MLB steroids investigation – SF Chronicle reporters cited for contempt for refusing to disclose source of leaked grand jury transcripts in Barry Bonds case. / MLB steroids investigation – SF Chronicle reporters cited for contempt for refusing to disclose source of leaked grand jury transcripts in Barry Bonds case. C. Shield Law Statutes Recent high profile journalist contempt cases

The First Amendment and Press Shield Laws Valeri Plame – NYT reporter Judy Miller jailed for 85 days for refusing to identify White House source who outed undercover CIA agent.Valeri Plame – NYT reporter Judy Miller jailed for 85 days for refusing to identify White House source who outed undercover CIA agent. Wen Ho Lee – Non-party news organizations pay to settle nuclear scientist’s privacy case after reporters ordered to disclose confidential sources.Wen Ho Lee – Non-party news organizations pay to settle nuclear scientist’s privacy case after reporters ordered to disclose confidential sources. Vanessa Legget – Houston book author jailed for 168 days for refusing to testify before federal grand jury investigating murder for hire.Vanessa Legget – Houston book author jailed for 168 days for refusing to testify before federal grand jury investigating murder for hire. Grand jury cases rejected First Amendment privilege; civil case applied it narrowly to overcome privilege.Grand jury cases rejected First Amendment privilege; civil case applied it narrowly to overcome privilege. C. Shield Law Statutes Recent high profile journalist contempt cases

The First Amendment and Press Shield Laws Generally most provide a “qualified” rather than “absolute” privilegeGenerally most provide a “qualified” rather than “absolute” privilege Journalist testimony not compelled unless the party seeking the information shows:Journalist testimony not compelled unless the party seeking the information shows: Information is highly material and relevant.Information is highly material and relevant. Compelling need.Compelling need. Information not available by other means.Information not available by other means. (Compare with Justice Stewart’s dissent.)(Compare with Justice Stewart’s dissent.) C. Shield Law Statutes 35 states and DC have adopted some form 35 states and DC have adopted some form

The First Amendment and Press Shield Laws Protects confidential sources only in some.Protects confidential sources only in some. Unpublished information also protected in others.Unpublished information also protected in others. Some apply in both criminal and civil casesSome apply in both criminal and civil cases Others apply only in civil proceedings.Others apply only in civil proceedings. C. Shield Law Statutes Differ state-to-state in protections. Differ state-to-state in protections.

The First Amendment and Press Shield Laws October 2007, U.S. House passed the Free Flow of Information Act (H.R. 2102) by 398 to 21. October 2007, U.S. House passed the Free Flow of Information Act (H.R. 2102) by 398 to 21. Senate Judiciary Committee approved similar provision (S. 2035). Senate Judiciary Committee approved similar provision (S. 2035). Both provide a qualified privilege to reporters that would apply in criminal and civil contexts. Both provide a qualified privilege to reporters that would apply in criminal and civil contexts. Senate version protects only the identity of confidential sources and records.Senate version protects only the identity of confidential sources and records. House bill extends protection not only to confidential sources and to documents or information obtained during the newsgathering process.House bill extends protection not only to confidential sources and to documents or information obtained during the newsgathering process. C. Shield Law Statutes Federal Legislation Federal Legislation

The First Amendment and Press Shield Laws Texas Free Flow of Information Act (SB 966)Texas Free Flow of Information Act (SB 966) Passed by the Senate in 2007Passed by the Senate in 2007 But died in the House in the last days of the 80th regular sessionBut died in the House in the last days of the 80th regular session objection on a point of order. objection on a point of order. Qualified privilege against compelled court testimony or disclosure of confidential sources.Qualified privilege against compelled court testimony or disclosure of confidential sources. C. Shield Law Statutes Reporters' work products, such as notes and tapes, would also have been protected by this limited privilege.Reporters' work products, such as notes and tapes, would also have been protected by this limited privilege.

The First Amendment and Press Shield Laws D. Conclusion Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering?Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering? Yes, in some circuits and states. Yes, in some circuits and states. Mostly civil cases. Mostly civil cases. Branzburg the last word in the grand jury context? Branzburg the last word in the grand jury context? Shield law statutes may fill the gap. Shield law statutes may fill the gap.