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The First Amendment and Press Shield Laws

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Does the First Amendment include a privilege for journalists against compelled ... But Justice White left the First Amendment door slightly ajar. ... – PowerPoint PPT presentation

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Title: The First Amendment and Press Shield Laws


1
The First Amendment and Press Shield Laws
  • Paul C. Watler
  • Jackson Walker LLP
  • pwatler_at_jw.com

2
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?

3
The First Amendment and Press Shield Laws
  • A. Freedom of the press under the First Amendment

A guarantee of freedom of the press was included
by the Founders in the Bill of Rights
Congress shall make no law abridging the
freedom of the press
4
The First Amendment and Press Shield Laws
Congress shall make no law abridging the
freedom of the press
  • What do these words mean in the law?
  • http//www.youtube.com/watch?veeVrzrmgitQ

5
The First Amendment and Press Shield Laws
  • Drafters of the Bill of Rights embraced the
    notion, derived from William Blackstone, that a
    freepress may not belicensed by thesovereign,
    or otherwiserestrained in advanceof publication

1. No prior restraint
6
The First Amendment and Press Shield Laws
  • 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. New
York Times Co. v. United States, U.S. 1971
(Pentagon Papers case).
7
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)
  • 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
8
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.

2. Limits on defamation liability
New York Times Co. v. Sullivan (U.S. 1964)
9
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?
  • The First Amendment and
  • Reporters Privilege

10
The First Amendment and Press Shield Laws
  • 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.
  • Reporters contended that they were shielded by a
    privilege under the First Amendment.

Branzburg v. Hayes (U.S. 1972)
11
The First Amendment and Press Shield Laws
  • 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.

Branzburg v. Hayes (U.S. 1972)
12
The First Amendment and Press Shield Laws
  • Without some protection for seeking out the
    news, freedom of the press could be eviscerated.
  • 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.

Branzburg v. Hayes (U.S. 1972)
13
The First Amendment and Press Shield Laws
Branzburg v. Hayes (U.S. 1972) But Justice
White left the First Amendment door slightly
ajar.
  • Grand 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 reporters
    relationship with his news sources would have no
    justification.

14
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.

Branzburg v. Hayes (U.S. 1972) Justice Powells
concurrence
15
The First Amendment and Press Shield Laws
  • Recognized 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.

Branzburg v. Hayes (U.S. 1972) Justice Stewarts
dissenting opinion
16
The First Amendment and Press Shield Laws
  • Four dissenters plus Powells concurrence all
    found First Amendment support for some form of a
    reporters 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.

Branzburg v. Hayes (U.S. 1972)
17
The First Amendment and Press Shield Laws
  • 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.
  • 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).
18
The First Amendment and Press Shield Laws
  • We decline to take Justice Powells 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.
  • 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).
19
The First Amendment and Press Shield Laws
  • Justice White in Branzburginvited legislative
    solution
  • Many enacted in 1970s 80s

C. Shield Law Statutes
  • More recently, conflicting interpretations of
    Branzburgand high profile journalist contempt
    cases also spurred adoption of statutory shield
    laws

20
The First Amendment and Press Shield Laws
C. Shield Law Statutes Recent high profile
journalist contempt cases
  • Balco / MLB steroids investigation SF Chronicle
    reporters cited for contempt for refusing to
    disclose source of leaked grand jury transcripts
    in Barry Bonds case. http//www.youtube.com/watch?
    vNH4i7dXBGO8

21
The First Amendment and Press Shield Laws
C. Shield Law Statutes Recent high profile
journalist contempt cases
  • 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 scientists 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.
  • Grand jury cases rejected First Amendment
    privilege civil case applied it narrowly to
    overcome privilege.

22
The First Amendment and Press Shield Laws
  • Generally most provide a qualified rather than
    absolute privilege
  • Journalist testimony not compelled unless the
    party seeking the information shows
  • Information is highly material and relevant.
  • Compelling need.
  • Information not available by other means.
  • (Compare with Justice Stewarts dissent.)

C. Shield Law Statutes 35 states and DC
have adopted some form
23
The First Amendment and Press Shield Laws
  • Protects confidential sources only in some.
  • Unpublished information also protected in others.
  • Some apply in both criminal and civil cases
  • Others apply only in civil proceedings.

C. Shield Law Statutes Differ
state-to-state in protections.
24
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.
  • Senate Judiciary Committee approved similar
    provision (S. 2035).
  • 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.
  • House bill extends protection not only to
    confidential sources and to documents or
    information obtained during the newsgathering
    process.
  • Shield Law Statutes
  • Federal Legislation

25
The First Amendment and Press Shield Laws
  • Texas Free Flow of Information Act (SB 966)
  • Passed by the Senate in 2007
  • But died in the House in the last days of the
    80th regular session
  • objection on a point of order.
  • 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.

26
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?
  • Yes, in some circuits and states.
  • Mostly civil cases.
  • Branzburg the last word in the grand jury
    context?
  • Shield law statutes may fill the gap.
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