Reporters' Privilege
Encyclopedia
Reporters' privilege in the United States
, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources". It may be described in the US as the qualified (limited) First Amendment
right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery
.
The First
, Second
, Third
, Fourth
, Fifth
, Ninth
, Tenth
, Eleventh
, and D.C.
Circuits have all held that a qualified reporters' privilege exists. Furthermore, thirty-one states have enacted shield law
s protecting journalists' anonymous sources
.
created self-imposed guidelines intended to protect the news media
by regulating the use of subpoenas against the press. These guidelines state that "all reasonable attempts should be made to obtain information from alternative sources” after considering issuing a subpoena
to a member of the news media. Furthermore, the guidelines require that federal prosecutors negotiate with the press, explaining the specific needs of the case.
Before any subpoena may be issued, the attorney general must approve the issuance. The attorney general’s review for a subpoena to a member of the news media shall be based on the following criteria:
While these guidelines seem extremely protective of the press, they explicitly deny the creation of “any legally enforceable right in any person.” Nor does the policy have any substantive punishment for the federal government violations. If the federal prosecutors fail to obtain approval from the attorney general, the extent of the authorized punishment is “an administrative reprimand or other appropriate disciplinary action.” In fact, some courts have found that the guidelines “create no enforceable right.” Therefore, in circuits taking this approach, the news media have no right to appeal for enforcement of these policies before being compelled to testify.
and Matthew Cooper
. Miller and Cooper were both served with grand jury subpoenas for testimony and information, including notes and documents pertaining to conversations with specific and all other official sources relating the Plame affair
. Both refused to submit to the subpoenas, claiming a reporter’s privilege. The federal district court held both Miller and Cooper in civil contempt of court, and the United States Court of Appeals for the District of Columbia Circuit
upheld the orders of contempt.
Miller and Cooper, in their appeal to the appellate court pleaded several defenses including a First Amendment reporter’s privilege and a common law reporter’s privilege. The appellate court rejected both the First Amendment and common law claims for privilege. The court held Miller and Cooper in civil contempt of court and sentenced both to eighteen months of jail time. The sentence was stayed pending an appeal to the U.S. Supreme Court.
However, the U.S. Supreme Court
refused to hear the case. Judith Miller began serving the remaining four months of the original eighteen-month sentence on July 6, 2005. Matthew Cooper’s confidential source released him from their confidentiality agreement, so he chose to comply with the subpoena and has agreed to testify before the grand jury.
and in the United States Senate
to create a federal shield law. The first bill was introduced in identical form in both the Senate and the House by Senator Richard Lugar (R-IN) and Representative Mike Pence
(R-IN). Senator
Christopher Dodd
introduced separate legislation that created a seemingly broader protection than the Pence/Lugar bill.
In 2006, Rodney A. Smolla
testified before the Senate Judiciary Committee on the topic of reporter's privilege.
On December 2, 2010, in a reaction to the United States diplomatic cables leak
by WikiLeaks
, John Ensign
(R-NV) introduced S.4004 to amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities and for other purposes. While titled the SHIELD Act, the proposed legislation has little in common with shield laws in the United States.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources". It may be described in the US as the qualified (limited) First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
.
The First
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
, Second
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
, Third
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
, Fourth
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
, Fifth
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
, Ninth
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, Tenth
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
, Eleventh
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
, and D.C.
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
Circuits have all held that a qualified reporters' privilege exists. Furthermore, thirty-one states have enacted shield law
Shield law
A shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.-Definition:...
s protecting journalists' anonymous sources
Protection of sources
The protection of sources, sometimes also referred to as the confidentiality of sources or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law...
.
Department of Justice guidelines
The United States Department of JusticeUnited States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
created self-imposed guidelines intended to protect the news media
News media
The news media are those elements of the mass media that focus on delivering news to the general public or a target public.These include print media , broadcast news , and more recently the Internet .-Etymology:A medium is a carrier of something...
by regulating the use of subpoenas against the press. These guidelines state that "all reasonable attempts should be made to obtain information from alternative sources” after considering issuing a subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
to a member of the news media. Furthermore, the guidelines require that federal prosecutors negotiate with the press, explaining the specific needs of the case.
Before any subpoena may be issued, the attorney general must approve the issuance. The attorney general’s review for a subpoena to a member of the news media shall be based on the following criteria:
- In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
- In civil cases there should be reasonable grounds, based on non-media sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
- The government should have unsuccessfully attempted to obtain the information from alternative non-media sources.
- The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.
- Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.
- Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.
While these guidelines seem extremely protective of the press, they explicitly deny the creation of “any legally enforceable right in any person.” Nor does the policy have any substantive punishment for the federal government violations. If the federal prosecutors fail to obtain approval from the attorney general, the extent of the authorized punishment is “an administrative reprimand or other appropriate disciplinary action.” In fact, some courts have found that the guidelines “create no enforceable right.” Therefore, in circuits taking this approach, the news media have no right to appeal for enforcement of these policies before being compelled to testify.
Judith Miller brings reporters' privilege to the forefront of media attention
The issue of a reporter's privilege came to the forefront of media attention in the case In re Miller, involving reporters Judith MillerJudith Miller (journalist)
Judith Miller is a Pulitzer Prize-winning American journalist, formerly of the New York Times Washington bureau. Her coverage of Iraq's alleged Weapons of Mass Destruction program both before and after the 2003 invasion generated much controversy...
and Matthew Cooper
Matthew Cooper (American journalist)
Matthew Cooper is a former reporter for Time who, along with New York Times reporter Judith Miller was held in contempt of court and threatened with imprisonment for refusing to testify before the Grand Jury regarding the Valerie Plame CIA leak investigation. He currently works as the managing...
. Miller and Cooper were both served with grand jury subpoenas for testimony and information, including notes and documents pertaining to conversations with specific and all other official sources relating the Plame affair
Plame affair
The Plame Affair involved the identification of Valerie Plame Wilson as a covert Central Intelligence Agency officer. Mrs. Wilson's relationship with the CIA was formerly classified information...
. Both refused to submit to the subpoenas, claiming a reporter’s privilege. The federal district court held both Miller and Cooper in civil contempt of court, and the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
upheld the orders of contempt.
Miller and Cooper, in their appeal to the appellate court pleaded several defenses including a First Amendment reporter’s privilege and a common law reporter’s privilege. The appellate court rejected both the First Amendment and common law claims for privilege. The court held Miller and Cooper in civil contempt of court and sentenced both to eighteen months of jail time. The sentence was stayed pending an appeal to the U.S. Supreme Court.
However, the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
refused to hear the case. Judith Miller began serving the remaining four months of the original eighteen-month sentence on July 6, 2005. Matthew Cooper’s confidential source released him from their confidentiality agreement, so he chose to comply with the subpoena and has agreed to testify before the grand jury.
Congressional proposals
In 2004, two significant bills were introduced in the United States House of RepresentativesUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and in the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
to create a federal shield law. The first bill was introduced in identical form in both the Senate and the House by Senator Richard Lugar (R-IN) and Representative Mike Pence
Mike Pence
Michael Richard "Mike" Pence is the U.S. Representative for Indiana's , and previously the , serving since 2001. The 6th district covers much of Eastern Indiana. He is a member of the Republican Party....
(R-IN). Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Christopher Dodd
Christopher Dodd
Christopher John "Chris" Dodd is an American lawyer, lobbyist, and Democratic Party politician who served as a United States Senator from Connecticut for a thirty-year period ending with the 111th United States Congress....
introduced separate legislation that created a seemingly broader protection than the Pence/Lugar bill.
In 2006, Rodney A. Smolla
Rodney A. Smolla
Rodney A. Smolla, is an award-winning author and first amendment scholar. He is the 11th president of Furman University.Smolla went to Yale University as an undergraduate and to Duke University Law School, where he finished first in his class...
testified before the Senate Judiciary Committee on the topic of reporter's privilege.
On December 2, 2010, in a reaction to the United States diplomatic cables leak
United States diplomatic cables leak
The United States diplomatic cables leak, widely known as Cablegate, began in February 2010 when WikiLeaks—a non-profit organization that publishes submissions from anonymous whistleblowers—began releasing classified cables that had been sent to the U.S. State Department by 274 of its consulates,...
by WikiLeaks
Wikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
, John Ensign
John Ensign
John Eric Ensign is a former United States Senator from Nevada, serving from January 2001 until he resigned amid an investigation of an ethics violation in May 2011...
(R-NV) introduced S.4004 to amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information related to certain intelligence activities and for other purposes. While titled the SHIELD Act, the proposed legislation has little in common with shield laws in the United States.
See also
- Branzburg v. HayesBranzburg v. HayesBranzburg v. Hayes, 408 U.S. 665 , was a landmark United States Supreme Court decision invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his...
- In re MaddenIn re MaddenIn re Madden, 151 F.3d 125 , is a decision from the Third Circuit Court of Appeals that established the Madden test, a test used to determine whether an individual is a journalist with standing to claim journalist's privilege....
- Privilege (evidence)Privilege (evidence)An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
- Subpoena duces tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
- Von Bulow v. Von BulowVon Bulow v. Von BulowVon Bulow v. Von Bulow, 811 F.2d 136 , was a case appealed from a contempt ruling after a District Court rejected the claim of a reporter's privilege by Claus von Bulow and Andrea Reynolds....