Exam 11: Protection of News Sources, Notes and Recordings

Courts and legislatures sometimes require that journalists promise confidentiality to sources if journalists wish to claim a privilege to withhold the names of sources.

After backlash from the revelation that the Trump administration in 2020 subpoenaed the email and phone records of eight journalists, Attorney General Merrick Garland, who was appointed by President Biden, announced that the Department of Justice was revising its policy regarding the use of subpoenas and search warrants directed at journalists. He also expressed support for a federal shield law.

Justice White, who wrote the opinion for the Court in Branzburg v. Hayes, and Justice Stewart, who dissented, disagreed because:

California's shield law protects journalists whose work is published on websites.

Confidential sources promised confidentiality may sue for the tort of promissory estoppel if they are hurt by a journalist's disclosure of their identity.

The Supreme Court has never recognized a First Amendment right for journalists to withhold the names of confidential sources.

Courts are most likely to follow the precedent of Justice White's majority opinion in the Branzburg case when journalists are subpoenaed by grand juries, when they are asked to testify about something they have witnessed, and when they are being asked to produce non-confidential information.

The campus Paper publishes a three-part series, written by Ron Reporter, about the sale on campus of illegal CDs imported from factories in Southeast Asia. The stories report that illegal sales are part of a national market in illicit sale of cheap but high-quality CDs. Ron Reporter (RR) promised confidentiality to his unnamed sources. He wrote a number of notes, drafts and opinions in the course of preparing his series. Paula Prosecutor (PP), a federal district attorney, is contemplating running for governor. She has always portrayed herself as "Tough on Crime." She concludes that fighting illegal CD sales on campus will serve the public interest as well as serve her political ambitions. She decides to get RR's unpublished notes, story drafts, and opinions to help her prosecute the illegal sellers and buyers. At first she considers getting a subpoena, demanding RR to turn over the notes and drafts. Then PP realizes she might get more favorable publicity in her fight against crime and her run for the governor's mansion if she "raids" the newsroom. Besides, she rationalizes, if she tries to get the notes and drafts through a subpoena, those "kids" at the Paper "will probably destroy the notes because they are probably friends of the sellers and buyers." She concludes that her efforts to stop illegal CD sales will even help reduce the U.S. trade deficit by reducing illegal imports. PP gets a search warrant from her friend Judge Pliable. When PP shows up at the Paper to conduct the search, Edward Editor (EE) protests that PP is about to conduct an illegal search. EE proclaims, first, that the First Amendment prohibits newsroom searches and, second, that a law enforcement official violates the Privacy Protection Act of 1980 by searching for journalists' "work product materials" in a newsroom without adequate justification. The search proceeds. A) Did PP violate the First Amendment when she conducted the search of a newsroom where journalists were not themselves criminal suspects? B) Did PP violate the Privacy Protection Act?

Although Congress has the authority to charge those who refuse to comply with a congressional subpoena, such actions are rare. Thus, the contempt of Congress charges against the CEO of Backpage.com are unusual.

The FBI's use of National Security Letters (NSLs) has grown dramatically since 2001.

What is the definition of the following term: -Defining bloggers as journalists.

In Branzburg v. Hayes, the Supreme Court:

The Supreme Court has recognized in the First Amendment an "implied" right for journalists to withhold the names of confidential sources.

In most states with shield laws, to overcome a journalist's qualified privilege to withhold notes or the names of sources, the government usually has to show that:

Zurcher v. The Stanford Daily established that:

The First Amendment explicitly says that journalists have a constitutional right to withhold the names of confidential sources.

State courts increasingly are grappling with the issue of whether those who post information on newspaper websites are "sources" covered by state shield laws.

In 2010, support for a proposed federal shield law evaporated as Wikileaks began posting a trove of classified U.S. government documents.

A journalist's claim of a First Amendment-based privilege:

A journalist who claims a constitutional right not to reveal sources to a grand jury has: