the first amendment and press shield laws paul c. watler jackson walker llp [email protected]

The First The First Amendment and Amendment and

Press Shield LawsPress Shield LawsPaul C. WatlerPaul C. Watler

Jackson Walker LLPJackson Walker LLP

[email protected]@jw.com

The First Amendment and Press The First Amendment and Press Shield LawsShield Laws

Freedom of the press under the First’ Freedom of the press under the First’ AmendmentAmendment

•• Does the First Amendment Does the First Amendment include a privilege for include a privilege for journalists against journalists against compelled testimony about compelled testimony about news sources or news news sources or news gathering?gathering?


A.A. Freedom of the press under the Freedom of the press under the First AmendmentFirst Amendment

““Congress shall make no law … Congress shall make no law … abridging the freedom … of the press”abridging the freedom … of the press”

A guarantee of freedom A guarantee of freedom of the press was included of the press was included by the Founders in the by the Founders in the Bill of RightsBill of Rights


What do these words mean in the law?What do these words mean in the law?http://www.youtube.com/watch?v=eeVrzrmgitQhttp://www.youtube.com/watch?v=eeVrzrmgitQ

““Congress shall make no law … abridging the Congress shall make no law … abridging the freedom … of the press”freedom … of the press”


• Drafters of the Bill of Rights embraced Drafters of the Bill of Rights embraced the notion, derived from William the notion, derived from William Blackstone, that a freeBlackstone, that a freepress may not bepress may not belicensed by thelicensed by thesovereign, or otherwisesovereign, or otherwiserestrained in advancerestrained in advanceof publicationof publication

1. No prior restraint1. No prior restraint


•• ““Chief purpose” of the free press clause is “to Chief purpose” of the free press clause is “to prevent previous restraints upon publication.”prevent previous restraints upon publication.”

– – Near v. Minnesota Near v. Minnesota (U.S. 1931)(U.S. 1931)

1. No prior restraint1. No prior restraint

•• ““Any system of prior restraints of Any system of prior restraints of expression comes to this Court expression comes to this Court bearing a heavy presumption bearing a heavy presumption against its constitutional validity.“ against its constitutional validity.“

–– New York Times Co. v. United New York Times Co. v. United States, U.S. 1971 (Pentagon States, U.S. 1971 (Pentagon

Papers case).Papers case).


• Supreme Court “constitutionalized” libel Supreme Court “constitutionalized” libel law as applied to the press in law as applied to the press in New York New York Times Co. v. Sullivan Times Co. v. Sullivan (U.S. 1964)(U.S. 1964)

–– ““Central meaning” of the First Central meaning” of the First Amendment: A “profound national Amendment: A “profound national commitment” that "debate on public commitment” that "debate on public issues ... [should be] ... uninhibited, issues ... [should be] ... uninhibited, robust, and wide-open."robust, and wide-open."

2. Limits on defamation liability2. Limits on defamation liability


• ““Constitution prohibits a public official Constitution prohibits a public official from recovering for [libel] relating to from recovering for [libel] relating to his official conduct unless he proves his official conduct unless he proves that the statement was made with that the statement was made with 'actual malice' — with knowledge that 'actual malice' — with knowledge that it was false or with reckless disregard it was false or with reckless disregard of whether it was false or not.”of whether it was false or not.”

2. Limits on defamation liability2. Limits on defamation liability

– – New York Times Co. v. SullivanNew York Times Co. v. Sullivan (U.S. 1964)(U.S. 1964)


•• Does the First Amendment include a privilege Does the First Amendment include a privilege for journalists against compelled testimony for journalists against compelled testimony about news sources or news gathering?about news sources or news gathering?

B.B. The First Amendment and The First Amendment and

Reporter’s PrivilegeReporter’s Privilege


• Journalists subpoenaed to testify before grand Journalists subpoenaed to testify before grand juries.juries.

• One of the cases involved a reporter refusing One of the cases involved a reporter refusing to disclose the identity of confidential sources to disclose the identity of confidential sources to a grand jury.to a grand jury.

• Reporters contended that they were shielded Reporters contended that they were shielded by a privilege under the First Amendment. by a privilege under the First Amendment.

Branzburg v. Hayes Branzburg v. Hayes (U.S. 1972)(U.S. 1972)


• Justice Byron White framed the Justice Byron White framed the question: question:

““The issue in these cases is whether The issue in these cases is whether requiring newsmen to appear and testify requiring newsmen to appear and testify before state or federal grand juries before state or federal grand juries abridges the freedom of speech and abridges the freedom of speech and press guaranteed by the First press guaranteed by the First Amendment.” Amendment.”



• ““Without some protection for seeking Without some protection for seeking out the news, freedom of the press out the news, freedom of the press could be eviscerated.” could be eviscerated.”

• However . . . However . . . ““We perceive no basis for holding that the We perceive no basis for holding that the

public interest in … grand jury proceedings public interest in … grand jury proceedings is insufficient to override the … burden on is insufficient to override the … burden on news gathering … from insisting that news gathering … from insisting that reporters, like other citizens, respond to reporters, like other citizens, respond to relevant questions … in the course of a relevant questions … in the course of a valid grand jury investigation or criminal valid grand jury investigation or criminal trial.”trial.”


The First Amendment and Press The First Amendment and Press Shield Laws Shield Laws

• ““[G]rand jury investigations if instituted or [G]rand jury investigations if instituted or conducted other than in good faith, would conducted other than in good faith, would pose wholly different issues for resolution pose wholly different issues for resolution under the First Amendment. Official under the First Amendment. Official harassment of the press undertaken not for harassment of the press undertaken not for purposes of law enforcement but to disrupt a purposes of law enforcement but to disrupt a reporter’s relationship with his news sources reporter’s relationship with his news sources would have no justification.”would have no justification.”

Branzburg v. Hayes Branzburg v. Hayes (U.S. 1972)(U.S. 1972)But Justice White left the First Amendment But Justice White left the First Amendment door slightly ajar.door slightly ajar.


• ““If the newsman is called upon to give If the newsman is called upon to give information bearing only a remote and information bearing only a remote and tenuous relationship to the subject of tenuous relationship to the subject of the investigation, or if … his testimony the investigation, or if … his testimony implicates implicates confidential source confidential source relationshipsrelationships without a legitimate need without a legitimate need of law enforcement, he will have access of law enforcement, he will have access to the court on a motion to quash.”to the court on a motion to quash.”

Branzburg v. Hayes Branzburg v. Hayes (U.S. 1972)(U.S. 1972)Justice Powell’s concurrenceJustice Powell’s concurrence


• Recognized First Amendment privilegeRecognized First Amendment privilege

• ““I would hold that the government must (1) I would hold that the government must (1) show … that the newsman has information that show … that the newsman has information that is clearly relevant to a specific probable is clearly relevant to a specific probable violation of law; (2) demonstrate that the violation of law; (2) demonstrate that the information sought cannot be obtained by information sought cannot be obtained by alternative means less destructive of First alternative means less destructive of First Amendment rights; and (3) demonstrate a Amendment rights; and (3) demonstrate a compelling and overriding interest in the compelling and overriding interest in the information.”information.”

Branzburg v. Hayes Branzburg v. Hayes (U.S. 1972)(U.S. 1972)Justice Stewart’s dissenting opinionJustice Stewart’s dissenting opinion


• Four dissenters plus Powell’s concurrence Four dissenters plus Powell’s concurrence all found First Amendment support for all found First Amendment support for some form of a reporter’s privilege. some form of a reporter’s privilege.

• Created an apparent majority for a First Created an apparent majority for a First Amendment privilege. Amendment privilege.

• Or at least, that was the face of Or at least, that was the face of BranzburgBranzburg in many lower court decisions during the in many lower court decisions during the next two decades.next two decades.



• BranzburgBranzburg recognized news gathering recognized news gathering deserves some First Amendment deserves some First Amendment protection. protection.

• Justice Powell concurring opinion stated Justice Powell concurring opinion stated that courts can determine whether a that courts can determine whether a privilege applies by using a balancing test.privilege applies by using a balancing test.

• Thus a qualified privilege available, even Thus a qualified privilege available, even where a reporter is called before a grand where a reporter is called before a grand jury to testify.jury to testify.

Post-Post-BranzburgBranzburgZerilli v. SmithZerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)., 656 F.2d 705 (D.C. Cir. 1981).


““We decline” to take Justice Powell’s concurrence We decline” to take Justice Powell’s concurrence as a mandate for qualified news reporters’ as a mandate for qualified news reporters’ privilege in criminal cases. privilege in criminal cases.

Powell only emphasized that at a certain point, Powell only emphasized that at a certain point, the First Amendment protects the press from the First Amendment protects the press from government. government.

To Powell, that point occurs when the grand jury To Powell, that point occurs when the grand jury investigation is not being conducted in good faith.investigation is not being conducted in good faith.

Post-Post-BranzburgBranzburg United States v. SmithUnited States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998)., 135 F.3d 963, 969 (5th Cir. 1998).


• Justice White in Justice White in BranzburgBranzburginvited legislative solutioninvited legislative solution

Many enacted in 1970s – 80sMany enacted in 1970s – 80s

• More recently, conflicting More recently, conflicting interpretations of interpretations of BranzburgBranzburgand high profile journalist contempt and high profile journalist contempt cases also spurred adoption of statutory cases also spurred adoption of statutory shield lawsshield laws

C. Shield Law StatutesC. Shield Law Statutes


• Balco / MLB steroids investigationBalco / MLB steroids investigation – SF Chronicle reporters – SF Chronicle reporters cited for contempt for refusing to disclose source of leaked cited for contempt for refusing to disclose source of leaked grand jury transcripts in Barry Bonds case. grand jury transcripts in Barry Bonds case. http://www.youtube.com/watch?v=NH4i7dXBGO8http://www.youtube.com/watch?v=NH4i7dXBGO8

C. Shield Law StatutesC. Shield Law StatutesRecent high profile journalist contempt casesRecent high profile journalist contempt cases


• Valeri PlameValeri Plame – NYT reporter Judy Miller jailed for 85 days for – NYT reporter Judy Miller jailed for 85 days for refusing to identify White House source who outed undercover refusing to identify White House source who outed undercover CIA agent. CIA agent.

• Wen Ho LeeWen Ho Lee – Non-party news organizations pay to settle – Non-party news organizations pay to settle nuclear scientist’s privacy case after reporters ordered to nuclear scientist’s privacy case after reporters ordered to disclose confidential sources.disclose confidential sources.

• Vanessa LeggetVanessa Legget – Houston book author jailed for 168 days for – Houston book author jailed for 168 days for refusing to testify before federal grand jury investigating refusing to testify before federal grand jury investigating murder for hire.murder for hire.

• Grand jury cases rejected First Amendment privilege; civil case Grand jury cases rejected First Amendment privilege; civil case applied it narrowly to overcome privilege.applied it narrowly to overcome privilege.

C. Shield Law StatutesC. Shield Law StatutesRecent high profile journalist contempt casesRecent high profile journalist contempt cases


• Generally most provide a “qualified” rather than Generally most provide a “qualified” rather than “absolute” privilege“absolute” privilege

• Journalist testimony not compelled unless the Journalist testimony not compelled unless the party seeking the information shows:party seeking the information shows:• Information is highly material and relevant. Information is highly material and relevant. • Compelling need. Compelling need. • Information not available by other means.Information not available by other means.

• (Compare with Justice Stewart’s dissent.)(Compare with Justice Stewart’s dissent.)

C. Shield Law StatutesC. Shield Law Statutes 35 states and DC have adopted some form35 states and DC have adopted some form


• Protects confidential sources only in Protects confidential sources only in some.some.

• Unpublished information also protected Unpublished information also protected in others. in others.

• Some apply in both criminal and civil Some apply in both criminal and civil casescases

• Others apply only in civil proceedings.Others apply only in civil proceedings.

C. Shield Law Statutes C. Shield Law Statutes Differ state-to-state in protections.Differ state-to-state in protections.


October 2007, U.S. House passed the Free Flow of October 2007, U.S. House passed the Free Flow of Information Act (H.R. 2102) by 398 to 21. Information Act (H.R. 2102) by 398 to 21.

Senate Judiciary Committee approved similar Senate Judiciary Committee approved similar provision (S. 2035).provision (S. 2035).

Both provide a qualified privilege to reporters that Both provide a qualified privilege to reporters that would apply in criminal and civil contexts. would apply in criminal and civil contexts.

• Senate version protects only the identity of Senate version protects only the identity of confidential sources and records. confidential sources and records.

• House bill extends protection not only to House bill extends protection not only to confidential sources and to documents or confidential sources and to documents or information obtained during the information obtained during the newsgathering process.newsgathering process.

C.C. Shield Law Statutes Shield Law Statutes Federal LegislationFederal Legislation


• Texas Free Flow of Texas Free Flow of Information Act (SB 966)Information Act (SB 966)• Passed by the Senate in 2007Passed by the Senate in 2007• But died in the House in the last But died in the House in the last

days of the 80th regular sessiondays of the 80th regular session objection on a point of order.objection on a point of order.

• Qualified privilege against Qualified privilege against compelled court testimony or compelled court testimony or disclosure of confidential disclosure of confidential sources. sources.

C. Shield Law StatutesC. Shield Law Statutes

• Reporters' work products, such as notes and tapes, Reporters' work products, such as notes and tapes, would also have been protected by this limited would also have been protected by this limited privilege.privilege.


D. ConclusionD. Conclusion

•• Does the First Amendment include a Does the First Amendment include a privilege for journalists against privilege for journalists against compelled testimony about news compelled testimony about news sources or news gathering?sources or news gathering? Yes, in some circuits and states.Yes, in some circuits and states. Mostly civil cases.Mostly civil cases. Branzburg Branzburg the last word in the grandthe last word in the grand jury context? jury context? Shield law statutes may fill the gap.Shield law statutes may fill the gap.

the first amendment and press shield laws paul c. watler jackson walker llp [email protected]

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