UNDERSTANDING REPORTER’S PRIVILEGE AND SHIELD LAWS

For decades, authorities have relied on various state and federal laws to investigate reporters and their sources, to issue them subpoenas and to use the threat of prosecution and incarceration to get them to cooperate.

In response, journalists and their lawyers have fought back by claiming “reporter’s privilege,” with varying degrees of success.

These issues have come to a head over the past decade as the Bush and Obama administrations have used unprecedented aggressiveness in going after reporters and their sources.

In response, there have been mounting efforts to get Congress to pass a federal Shield Law, which would protect not only the journalists but, perhaps even more so, their sources from being identified and prosecuted for unauthorized leaks of information.

Those efforts have been met with mixed success – and some controversy – but are continuing. This How-To includes a status report on those efforts, and the potential ramifications of the current shield laws being considered in the U.S. House and Senate. It also looks at state shield laws, which vary widely from state to state, and at the broad concept known as reporter’s privilege.

This How-To also provides journalists with information about what to steps to take to protect themselves from being subpoenaed, and what to do if they are subpoenaed, or come under investigation and possible prosecution.

WHAT IS REPORTER’S PRIVILEGE?

Simply put, reporter’s privilege is the right not to be compelled to testify or disclose sources and information in court, or in grand jury proceedings or other venues – in each state and federal circuit.

The law varies significantly by state, and by the interpretations of the various federal circuit and appeals courts. “A section below deals with the widely varying state laws, some of which have been established by legislative action and others by court rulings and legal precedent.

Currently, the case that is likely to set legal precedent is that of the New York Times’ James Risen, whose legal team is now fighting the third subpoena demanding that he disclose the source of information about U.S. counter-proliferation cyber-operations against Iran in his 2006 book, “State of War: The Secret History of the CIA and the Bush Administration.”

In July 2013, a federal appeals court in Richmond, Virginia, ruled that Risen could not claim reporter’s privilege under the First Amendment to win exemption from being compelled to testify.

A petition is now pending at the Supreme Court, though some legal experts are not optimistic that the high court will take the case. That would be a big blow for advocates of a strong reporter’s privilege, legal experts say. On April 25th, the Justice Department formally asked the Supreme Court not to hear the case, which would effectively end Risen’s appeal. Here’s a good New York Times public editor blog post about the latest Justice Department action and its legal brief.

Risen’s lawyers argue that by trying to compel him to testify, the Justice Department is essentially criminalizing the work that many journalists do in trying to obtain national security information for the purposes of publication.

If reporters cannot reasonably guarantee confidentiality to sources, they say, those sources won’t provide information that is vital to the public interest.

Risen is by no means the first journalist threatened with subpoenas, especially since 2003. That’s when influential federal appeals court judge Richard Posner dealt reporter’s privilege a significant setback by issuing an opinion saying that journalists have virtually no right to protect their sources.

Specifically,Posner concluded that the landmark Branzburg v. Hayes case of 1972 actually did not establish the reporter’s privilege that conventional wisdom held that it did. He said those seeking to subpoena a member of the media need only to make sure that it is “reasonable in the circumstances.”

Federal prosecutors have gone after reporters in numerous cases since then, often as a way to find out who was leaking information in the first place, even though legal precedent had been for authorities to undertake such efforts only after all other avenues have been exhausted.

Reporters have had their emails and other information read or seized, they have been subpoenaed and deposed, and at least one has gone to jail or prison to protect sources.

More information can be found in several pieces (here and here) that Shane Harris wrote in Washingtonian Magazine about the erosion of reporter’s privilege. Other good sources of information abound, including “Rethinking Reporter’s Privilege” by RonNell Andersen Jones and “Deja Vu All Over Again: How A Generation of Gains in Federal Reporters’ Privilege Is Being Reversed,” by Lucy A. Dalglish & Casey Murray. Also: “‘Preferred Position?’ The Reporter’s Privilege in the 21st Century and Beyond.”

ORIGINS OF REPORTER’S PRIVILEGE

The landmark 1972 Supreme Court case Branzburg v. Hayes is considered the origin of reporter’s privilege, in that it went into the issue of whether or not journalists can be subpoenaed and forced to reveal confidential information.

Paul Branzburg was a reporter for The Courier-Journal newspaper in Louisville, Kentucky, who in the course of writing a story promised to protect two local citizens who were growing and using the marijuana derivative known as hashish. Because their activity was illegal, Branzburg was subpoenaed by a local grand jury after the article was published and ordered to reveal the identity of his sources. He refused, citing the First Amendment freedom of the press provisions, and the paper’s lawyers fought the case all the way to the nation’s highest court.

In a 5-to-4 decision, the high court ruled that journalists did not have a Constitutional right of protection from revealing confidential information. But the court also acknowledged the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”

The ruling established a general consensus that judges would require a specific and compelling reason before approving a subpoena against a journalist. But its vague wording has led to several decades of widely varying interpretations.

The federal Third Circuit Court of Appeals in Philadelphia, for instance, interpreted a qualified First Amendment privilege from Branzburg in 1979, holding in a case known as Riley v. City of Chester that:

  • a reporter’s right to protect his or her sources from disclosure could be overcome by a party who, by a preponderance of the evidence, demonstrated that he has made an effort to obtain the information elsewhere.
  • that the only access to the information sought is through the journalist and his or her source.
  • and that the information sought is crucial to the case.

The federal government has relied often on that case, including when it subpoenaed numerous news outlets to determine who had leaked to them the name of Steven J. Hatfill, a former Army scientist whom some within the FBI reportedly believed was a “person of interest” in the post-9/11 anthrax mailings.

SHIELD LAW VS. REPORTER’S PRIVILEGE

There is a difference, but there is also a tremendous amount of overlap. A shield law, at its essence, gives journalists protection against being forced to disclose confidential information or sources in court. It extends far beyond national security matters involving classified material and can involve information that other parties are trying to obtain for criminal matters (such as a videotape that shows someone shooting someone else) or even a civil matter.

Although the state laws vary widely in scope and substance, they aim to provide some basic protection against revealing a source or having to disclose information. Using that comes in the form of resisting a subpoena or other court order, including to testify about information obtained during reporting or contained in a news story.

Some jurisdictions provide total protection whereas others provide only qualified protection that may or may not extend outward from the reporter to their editors and media executives.

Also, some shield laws go so far as to provide additional protection to reporters even if the source or information is no longer confidential, such as when it is already published or becomes otherwise publicly known.

STATE LAWS

States differ so widely on their approach that it would take up too much time to describe them all in detail here. But what follows are some good links to legal, journalistic and scholarly websites that explain them, allow you to compare their differences, and find out best ways to use them if you’ve been subpoenaed.

As of 2014, Wyoming was the only state without some form of shield law or judicial precedent protecting reporter’s privilege. In some cases, the protections cover journalists from revealing confidential sources but not other types of information. Some protect information only in civil or criminal matters.

  • Wikileaks has a page on current protections for reporter’s privilege in each state. So does the Society of Professional Journalists; here is its shield law page.
  • The First Amendment Project also has an excellent Pocket Guide to Protecting Unpublished Information and Confidential Sources (PDF file).

  • The Electronic Frontier Foundation has a very helpful Frequently Asked Questions page on the Reporter’s Privilege that includes information for specifically for bloggers who report news gathered from confidential sources.

  • Perhaps the best resource is the Reporters Committee for Freedom of the Press, a nonprofit association dedicated to providing free legal assistance to journalists since 1970. Here is its Media Law Resources page. And here’s a link to its The Reporter’s Privilege page, an exhaustive compendium of information, including on how to exercise the right not to be compelled to testify or disclose sources and information in court — in each state and federal circuit.

    Each section is arranged according to a standard outline, making it easy to compare the law in various states. And it has a very helpful Introduction and User’s Guide for non-lawyers and new users of the guide.

    The RCFP site allows you to compare specific topics across multiple states. They include: Civil vs. criminal vs. grand jury cases; confidential and/or non-confidential information; published and/or non-published material; professional news organizations versus citizen and other non-traditional news gatherers and how to file a waiver versus a motion to quash.

ON THE FEDERAL STAGE: LAW VERSUS POLICY

Much of the effort to go after reporters and their sources has been dictated not by law but by U.S. government policy, specifically the Justice Department guidelines governing when subpoenas can be used, and against whom – and, more recently, whether the subject of the subpoenas even has the right to know about, and contest, them.

What about A federal shield law?

Josh explores ongoing legislative attempts to establish what woulds surely be a complex federal shield law.

Full story.

Despite their importance, the Justice Department had operated under essentially the same set of guidelines regarding subpoenaing members of the media since 1970. They’re found here, at 28 C.F.R. s. 50.10, with a good primer here from the Reporters Committee for Freedom of the Press.

These Justice Department regulations cover a lot of ground, and they were revised last year in response to a collective media outcry over Obama administration efforts to gather information on journalists. Here’s the document outlining the recently approved new guidelines, which is ominously titled, “Policy Regarding Obtaining Information From, or Records of, Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media.”

Since last year’s controversies, there have been redoubled efforts to establish some kind of federal media shield law to protect journalists.

HOW TO PROTECT YOURSELF FROM BEING SUBPOENAED

The best way to protect yourself is to understand the laws and regulations governing the unauthorized release of information and shield laws. This how-to guide is a good first step.

Also, make sure you practice good operational security, in terms of not disclosing anything through social media and even email that you don’t want authorities to know about. See this How To for more detail about that.

Last but certainly not least, become familiar with some of the experts on these issues, especially the Reporters Committee for Freedom of the Press. Its website has tons of constantly updated information about these issues. More importantly, it has lawyers who can provide you with free legal advice on what to do if you face any of these issues (I can say from experience that they are extremely helpful).

Steven Aftergood and his Secrecy News Blog at the Federation of American Scientists is also extremely knowledgeable and helpful about these issues. And “good journalism” organizations such the Society of Professional Journalists and Investigative Reporters & Editors have lots of information about these issues, and conferences where experts discuss them.

Also, talk to your editors to make sure you understand the ground rules of whether they protect you, and to what degree, in terms of forcing you to reveal sources and paying for legal representation. If your media outlet has in-house lawyers, talk to them to, or ask your editors to have the lawyers talk to the entire staff to go over the particulars of your company’s policies and procedures.

If you’re an independent contractor, it’s up to you to understand all of these issues. You might want to consider having a pre-emptive conversation with a media law expert, or to lawyer.

WHAT TO DO IF YOU ARE SUBPOENAED OR COME UNDER INVESTIGATION

Digital Media Law Project

The Digital Media Law Project has a great article on what to do if you get a subpoena.

It does a thorough job of describing what a subpoena is, how they work, who can subpoena reporters, what to do after you get one, and what kind of lawyer you or your media organization might want to hire as a result (and what other steps you can take.

The DMLP also has a lot of helpful information about accepting a subpoena vs. complying with a subpoena (they’re very different), your ability to cite inconvenient date and cost of travel, filing an objection to a subpoena(and motion to quash), and what constitutes improper service.

And it has whole sections on Responding to Correspondence Threatening Legal Action, and Responding to Lawsuits for help figuring out what you’ve received.

Importantly, DMLP also has a great resource called the CMLP Legal Threats Database, which allows you to add your subpoena and check out others. Creating an entry in the Legal Threats Database will help others who receive similar subpoenas in weighing their options regarding how to respond, and help DMLP stay on top of the issue.

Here are some examples of subpoenas included on the DMLP site:  Earthlink SubpoenaAutoAdmit SubpoenaTice Subpoena, and IBM Subpoena.

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ESSENTIAL TIPS AND WISDOM,
STRAIGHT FROM THE EXPERT

About the reporter

Josh Meyer is director of education and outreach for the Medill National Security Journalism Initiative.

He spent 20 years with the Los Angeles Times before joining Medill in 2010, where he is also the McCormick Lecturer in National Security Studies.

Josh is the co-author of the 2012 best-seller “The Hunt For KSM; Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed,” and a member of the board of directors of Investigative Reporters and Editors.

Follow him on Twitter at @JoshMeyerDC. Email: josh@northwestern.edu.


KEY CASES

Key recent cases and their outcomes:

Fall 2004 – Special DOJ prosecutor Patrick J. Fitzgerald subpoenas at least five journalists in the Valerie Plame investigation to see whether White House officials leaked the identity of the undercover CIA operative to the media. New York Times reporter Judith Miller refuses and ultimately spends nine weeks in jail, even though she never published the information. TIME magazine ultimately agreed to comply with a federal subpoena and surrender reporter Matthew Cooper’s notes and files.

September 2004 – Fitzgerald subpoenas two New York Times reporters’ telephone records for an Illinois grand jury investigation into whether government employees leaked plans of a planned FBI raid on Global Relief Foundation, an Islamic charity suspected of funding terrorism.

Winter 2006— The Justice Department begins investigating who leaked information to Risen and colleague Eric Lichtblau of the New York Times, allowing them to disclose a top-secret NSA warrantless surveillance program. Attorney General Alberto Gonzales tells Congress that, “Obviously our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they’re going to prosecute those violations.” 

Washingtonian magazine will later say, “This is the first time any administration official has hinted that the government might prosecute journalists under criminal law for reporting on national security information.”

January 2008 — The Justice Department issues a subpoena to Risen to determine who gave him classified information for his State of War book. Risen fights the subpoenas, and then two more, leading to a protracted legal battle that continues to this day.

February 2008 —  USA Today reporter Toni Locy is ordered held in contempt of court for refusing to identify her sources for articles on a scientist identified as a person of interest in the post-9/11 anthrax attacks. Hatfill, the former Army scientist, denied wrongdoing andsued the government and subpoenaed Locy and numerous other journalists in an effort to determine who in the government had given his name. Locy faces $5,000 in fines for each day she refuses to testify, but avoids jail time when Hatfill settles his case against the government.

Fall 2012 – The Justice Department launches an investigation into who leaked information about Stuxnet and other cyber-operations mounted against Iran to New York Times reporter David Sanger for newspaper stories and his book “Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power.”

May 2013 — The Justice Department investigates the Associated Press for a story on CIA efforts to stop a bomb plot emanating from Yemen, and issues broad subpoenas for the phone records and other information pertaining to AP reporters. It is later disclosed that the subpoenas are so broad that the Justice Department obtained the communications of as many as 100 AP journalists in four offices.

Other cases in which reporters were subpoenaed:

  • The trial of New York defense attorney Lynne Stewart for aiding terrorism by publicizing a client’s statement against court orders
  • The civil suit of former Los Alamos nuclear scientist Wen Ho Lee against two federal agencies for leaks to the media
  • The San Francisco grand jury investigation into alleged illegal steroid distribution by BALCO, the Bay Area nutritional supplement company.

  • A federal shield law?

    Josh explores ongoing legislative attempts to establish what woulds surely be a complex federal shield law. Full story.


    Other how-to guides


    Sources and Secrets

    Read an unabridged version of a background brief Josh put together after doing extensive resarch on behalf of participants of the Sources & Secrets earlier this year. The briefing, downloadable as a PDF, covers the major legal issues that reporters confront when covering national security, and explains some of the key laws and regulations.