Reporter's Privilege Analysis

7/31/2019 Reporter's Privilege Analysis

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Communication

Law

The Reporters

Privilege: An

AnalysisA 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


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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.6While 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.8As 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.9When 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.11Noted under Title 28 of the Code of Federal Regulations,

the prosecutorial power of the governmentshould not be used in such a way that it impairs

a reporters responsibility to cover as broadly as possible controversial public issues. 12One

5Shield law

6Shield Laws. In Mass Media Law

7Lower-court Rulings

8Civil Cases

9Contempt of Court

10History of Contempt

11Federal Guidelines

12Title 28 CFR Ch. 1


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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. Hayescase, 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. Smithcase, the motion to subpoena was

quashed, citing the earlier Branzburg v. Hayesas 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

16Branzburg v. Hayes & Opinion of Justice Stewart

17Constitutional Protection of News Sources

18Zurilli 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.19As the summary for U.S. v. Burkeputs 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. Cutlercase 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.

19Criminal Cases

20United States v. Burke

21Criminal Cases

22U.S. v. Cutler


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Sterling was later indicted in December 2010 for leaking the classified information to Risen. 23

24

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.25The 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 ofthe United States. Therefore, such worry of utilizing the classified information in Sterlin gs

23Federal Prosecutors Try To Force New York Times Reporter To Reveal Sources

24Ex-CIA Officer Charged with Leak to Reporter

25Brief 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 lawto 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.

26Background of the Free Flow of Information Act


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bibliographyAftergood, Steven. Reporters Privilege at Issue in Sterling Leak Case.February 15, 2012.

http://www.fas.org/blog/secrecy/2012/02/reporters_privilege.html (accessed May 17,

2012).

American Society of News Editors . Background of the Free Flow of Information Act.March

25, 2009.

http://asne.org/key_initiatives/freedom_of_information/free_flow_of_information_act.as

px (accessed May 17, 2012).

Cornell University Law School. First Amendment.n.d.

http://www.law.cornell.edu/constitution/first_amendment (accessed May 17, 2012).

Dictionary.com. Shield law.2012. http://dictionary.reference.com/browse/shield+law

(accessed May 17, 2012).

Ferran, Lee. Federal Prosecutors Try To Force New York Times Reporter To Reveal Sources.

May 25, 2011. http://abcnews.go.com/Blotter/james-risen-subpoenaed-jeffrey-

sterling-case/story?id=13684074#.T7ZWwdyvKSp (accessed May 17, 2012).

Isikoff, Michael. Ex-CIA Officer Charged with Leak to Reporter.January 6, 2011.http://www.nbcnewyork.com/news/politics/Ex-

CIA_officer_charged_with_leak_to_reporter-113042189.html (accessed May 17, 2012).

Kelley, David N., and Kurtzberg Joel. "Brief of Appellee James Risen." Federation of American

Scientists.February 14, 2012. http://www.fas.org/sgp/jud/sterling/021412-risen41.pdf

(accessed 17 May, 2012).

"Civil Cases." In Mass Media Law, by Don R. Pember and Clay Calvert, 432-433. New York:

McGraw-Hill, 2008.

"Constitutional Protection of News Sources." In Mass Media Law, by Don R. Pember and Clay

Calvert, 428-430. New York: McGraw-Hill, 2008.


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"Federal Guidelines." In Mass Media Law, by Don R. Pember and Clay Calvert, 452. New York:

McGraw-Hill, 2008.

"History of Contempt." In Mass Media Law, by Don R. Pember and Clay Calvert, 458. New

York: McGraw-Hill, 2008.

"Lower-Court Rulings." In Mass Media Law, by Don R. Pember and Clay Calvert, 430-431.

New York: McGraw-Hill, 2008.

"Shield Laws." In Mass Media Law, by Don R. Pember and Clay Calvert, 449. New York:

McGraw-Hill, 2008.

Powell, Justice. "Branzburg v. Hayes & Opinion of Justice Powell." Cornell University Law

School.June 29, 1972.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0665_ZC.html


"Criminal Cases." In Mass Media Law, by Don R. Pumber and Clay Calvert, 435-436. New

York: McGraw-Hill, 2008.

Reporters Committee for Freedom of the Press. The Reporter's Privilege.2011.

http://www.rcfp.org/reporters-privilege (accessed May 17, 2012).

Stewart, Justice. "Branzburg v. Hayes & Opinion of Justice Stewart." Cornell University Law

School.June 29, 1972.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0665_ZD1.html


Supreme Court of the United States. "Branzburg v. Hayes." Cornell University Law School.

June 29, 1972.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0665_ZS.html(accessed May 17, 2012).

The Free Dictionary. Contempt of Court.2012. http://legal-

dictionary.thefreedictionary.com/Contempt+of+Court (accessed May 17, 2012).


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Reporter's Privilege Analysis