Protecting sources A constitutional clash — with the media on the losing end

An old dilemma In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate The Herald gave Nugent a raise After a month, the Senate gave up

Another clash over the Sixth “[T]he accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor” All must testify before the grand jury The First Amendment belongs to everyone, not just the press

Journalist’s or reporter’s privilege As with free press/fair trial, a balancing test Courts decide on a case-by-case basis Guidelines have shifted over time

Branzburg v. Hayes (1972) Paul Branzburg’s sources had information about drugs Two co-defendants had done confidential reporting on the Black Panther Party

Byron “Whizzer” White Wrote majority opinion Rejected reporter’s privilege Wrote that “the lonely pamphleteer” is as important as professional journalists

Potter Stewart Wrote minority decision Criticized majority’s “disturbing insensitivity” to the role of a free press Proposed a three- part balancing test

The Stewart test Does the journalist possess “clearly relevant” information? Is there no way of obtaining the information by “less destructive” means? Is there a “compelling and overriding need” for the information?

Powell’s “enigmatic concurring opinion” Sides with majority’s view that there is no reporter’s privilege Calls for “striking of a proper balance” between freedom of the press the obligation to testify Stewart wins by losing

The balancing test in practice Relevance and importance of information

The balancing test in practice Relevance and importance of information Availability through alternative means

The balancing test in practice Relevance and importance of information Availability through alternative means Type of controversy –Reporter’s privilege is weaker in a criminal case than a civil case

The balancing test in practice Relevance and importance of information Availability through alternative means Type of controversy How information was gathered –Confidential sources are more privileged than first-hand observation such as Josh Wolf’s footage

Shield laws About 30 states have them –A shield law is being considered in Massachusetts

Shield laws About 30 states have them Except for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege

Shield laws About 30 states have them Except for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege None is absolute — more like the Stewart balancing test

Shield laws About 30 states have them Except for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege None is absolute — more like the Stewart balancing test No federal shield law

What should be protected? Justice White said you can’t define who is a journalist Vanessa Leggett ran afoul of this and served 168 days Is it possible to define journalism?

Citizen journalists Josh Wolf is the modern “lonely pamphleteer” We need to protect journalism, and not worry about who’s a journalist

Media arrogance Mark Bowden asks: Why should the media stand in the way of justice? “The First Amendment protects freedom of the press, but it doesn’t absolve it from all civic responsibility”

Cohen v. Cowles Media Co. (1991) Damned if you do, damned if you don’t Based on the doctrine of promissory estoppel –A false promise that leads someone to engage in damaging behavior –Similar to contract law Justice White: “generally applicable laws” do not violate First Amendment

McKevitt v. Pallasch (2003) Richard Posner a highly influential conservative judge Can’t ignore Supreme Court precedent Tells colleagues to re-read Branzburg and see it for what it is

Judith Miller case (2005) Judge Sentelle adopts Posner’s view Notes that Justice Powell sided with the Branzburg majority Adds that Justice Department used balancing test