Protecting sources A constitutional clash — with the media on the losing end.
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Transcript of 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 orreporter’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 “enigmaticconcurring 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
• 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
• 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. CowlesMedia 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