Reporter’s Privilege

Reporter’s PrivilegeReporter’s Privilege

How to Stay Out of JailHow to Stay Out of Jail

What Are My Obligations?What Are My Obligations?

To your sourceTo your sourceA promise to a source is an enforceable A promise to a source is an enforceable

contract.contract.Cohen v Cowles Media Company (1991)Cohen v Cowles Media Company (1991)

To your publication/company/editor(s)To your publication/company/editor(s)

Types of Promises Made to Types of Promises Made to SourcesSources

ConfidentialConfidential

Off-the-recordOff-the-record

On background On background

Not for attributionNot for attribution

Questions in advanceQuestions in advance

Nature of article/publicationNature of article/publication

What Is the Law?What Is the Law?

What Law Applies?What Law Applies?

Why do we care?Why do we care?

Sources of the PrivilegeSources of the Privilege

First AmendmentFirst Amendment

Common LawCommon Law

StatuteStatute

What Law Applies?What Law Applies?

FederalFederalNew YorkNew YorkOther StateOther StateOther CountryOther Country

Who Qualifies as a Journalist for Who Qualifies as a Journalist for Claiming the Privilege?Claiming the Privilege?

Book author/publisherBook author/publisherMagazine author/publisherMagazine author/publisherFreelance authorFreelance authorEditorEditorFirst-time book authorFirst-time book authorWriter for established websiteWriter for established websiteBloggerBlogger

How Do the Laws Differ?How Do the Laws Differ?What they protectWhat they protect

Sources versus informationSources versus informationNon-confidential versus confidentialNon-confidential versus confidentialPublished versus unpublishedPublished versus unpublishedCommunications versus firsthand Communications versus firsthand

observations (eyewitness to a crime)observations (eyewitness to a crime)What protection they giveWhat protection they give

Absolute versus qualifiedAbsolute versus qualified If you are sued for defamationIf you are sued for defamation

New York Shield Law (b) Exemption of professional journalists and

newscasters from contempt: Absolute protection for confidential news. …

(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. … the party seeking such news must make a “clear and

specific showing” that the information: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source

The First Amendment PrivilegeThe First Amendment PrivilegeStep One – U.S. Supreme CourtStep One – U.S. Supreme Court

Branzburg v HayesBranzburg v Hayes (1972) (1972)Grand jury subpoenaGrand jury subpoena4-4-1 Decision4-4-1 DecisionJustice Powell’s concurrence:Justice Powell’s concurrence:

““The asserted claim to privilege should be judged The asserted claim to privilege should be judged on its facts by the striking of a proper balance on its facts by the striking of a proper balance between freedom of the press and the obligation of between freedom of the press and the obligation of all citizens to give relevant testimony with respect all citizens to give relevant testimony with respect to criminal conduct.”to criminal conduct.”

The First Amendment PrivilegeThe First Amendment PrivilegeStep Two – Interpreting and Applying Step Two – Interpreting and Applying

BranzburgBranzburg

Majority (but not unanimous) approach Majority (but not unanimous) approach There is no privilege when a reporter There is no privilege when a reporter

witnesses a crime.witnesses a crime.There is a qualified privilege for confidential There is a qualified privilege for confidential

sources.sources.There is a qualified privilege for non-There is a qualified privilege for non-

confidential, unpublished information.confidential, unpublished information.

The First Amendment PrivilegeThe First Amendment PrivilegeStep Two – Interpreting and Applying Step Two – Interpreting and Applying

BranzburgBranzburg

Minority approach: the two extremesMinority approach: the two extremes

No privilege exists.No privilege exists.

There is a qualified privilege for published There is a qualified privilege for published information.information.

The First Amendment PrivilegeThe First Amendment PrivilegeStep Three – the 21Step Three – the 21stst Century Century

McKevitt v. PallachMcKevitt v. Pallach (7 (7thth Circuit July 2003) Circuit July 2003) Wen Ho LeeWen Ho Lee (D.D.C. October 2003) (D.D.C. October 2003)

$500 a day; news media paid off the plaintiff$500 a day; news media paid off the plaintiff In re Special Proceedings (Taracani)In re Special Proceedings (Taracani) (1 (1stst Circuit June Circuit June

2004)2004) $1,000 a day; House arrest$1,000 a day; House arrest

Vanessa LeggettVanessa Leggett JailJail

Judy Miller and Matt CooperJudy Miller and Matt Cooper JailJail

……and many more.and many more.

Federal Shield LawS 448

Senate Judiciary Committee November 19, 2009

Confidential sources and information received in confidence – qualified privilege.

Exhaustion of “all reasonable alternatives” in all cases, plus…


And in criminal cases,Reasonable grounds to believe a crime has

occurred;Reasonable grounds to believe the

information is “essential” to the investigation, prosecution, or defense;

If DOJ is seeking it, AG certification that DOJ guidelines have been followed;

The journalist has not established by “clear and convincing evidence” that disclosure would be contrary to the public interest…”


And in civil cases,The information sought is “essential to

resolution of the matter”; andThe party seeking the information has

established that “the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the news or information at issue and maintaining the free flow of information.”


Exemptions:Eyewitness to a crime“Reasonably necessary” to prevent death,

kidnapping or substantial bodily harmInformation would “materially assist” the

government in “preventing or mitigating” an act of terrorism or another act that is a “reasonably likely to cause significant and articulable harm to national security.”


“Covered Person”“with the primary intent to investigate events

and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest …”

has such intent “at the inception” obtains the information “in order to

disseminate” it.

Application of the Privilege in a Application of the Privilege in a Libel LawsuitLibel Lawsuit

Three alternatives (two bad)Three alternatives (two bad)

1.1. Used as a sword…credible, long term Used as a sword…credible, long term source testimonysource testimony

2.2. May not use the fact of a source for the May not use the fact of a source for the informationinformation

3.3. Adverse inference Adverse inference

SummarySummaryThere is no way to know in advance There is no way to know in advance

whether state or federal law will apply.whether state or federal law will apply.There is no guarantee that a privilege will There is no guarantee that a privilege will

be recognized by the court you are in.be recognized by the court you are in. If a privilege is recognized, it may be If a privilege is recognized, it may be

qualified and if it is, there is no way to qualified and if it is, there is no way to know whether it will be overcome.know whether it will be overcome.

AccessAccess

Sources of Rights of AccessSources of Rights of AccessFirst Amendment to the U.S. Constitution First Amendment to the U.S. Constitution

and various state constitutional provisionsand various state constitutional provisions

Statutes (Freedom of Information Act)Statutes (Freedom of Information Act)

Consent (express or implied)Consent (express or implied)

Types of AccessTypes of Access

To courtsTo courts

To public meetings and proceedingsTo public meetings and proceedings

To documents and materialsTo documents and materials

Access to ProceedingsAccess to ProceedingsCriminal and civil court proceedingsCriminal and civil court proceedings

Press Enterprise Co. v Superior CourtPress Enterprise Co. v Superior Court

Administrative proceedings (e.g., Administrative proceedings (e.g., deportation proceedings under deportation proceedings under immigration laws)immigration laws)

Public meetings and hearingsPublic meetings and hearings

Access to Places – What Are Access to Places – What Are Your Rights?Your Rights?

Private propertyPrivate property The property owner has a right to control access The property owner has a right to control access and conditions and conditions

for accessfor access to his own property. to his own property. Access versus permission to take photographs.Access versus permission to take photographs. Ride alongs.Ride alongs. Posted property.Posted property.

Implied consentImplied consent Shopping mallsShopping malls Door-to-door salesman ruleDoor-to-door salesman rule

Disaster sitesDisaster sites Police versus private property owner – who is in control?Police versus private property owner – who is in control?


Public property Public property The press has a right to go anywhere the general The press has a right to go anywhere the general

public can go.public can go. The press has a right to take photographs anywhere The press has a right to take photographs anywhere

the general public can take photographs.the general public can take photographs. The press does The press does notnot have a right to go anywhere the have a right to go anywhere the

general public is not permitted to go.general public is not permitted to go. Individual members of the press cannot be Individual members of the press cannot be

discriminated against based on their publication’s discriminated against based on their publication’s content when gaining special access to public content when gaining special access to public property.property.


Public property – special access for the Public property – special access for the mediamediaMust be non-discriminatory and reasonableMust be non-discriminatory and reasonableCan the government require…Can the government require…

Fingerprinting and background checksFingerprinting and background checksLiability waiversLiability waiversRestrictions on reporting or news coverageRestrictions on reporting or news coverage

Press passes – what rights do they give you?Press passes – what rights do they give you?

Freedom of Information Freedom of Information Act (FOIA)Act (FOIA)

Making the Government Give You Making the Government Give You DocumentsDocuments

Alphabet SoupAlphabet SoupFOIAFOIA

Federal “Freedom of Information Act”Federal “Freedom of Information Act”

FOILFOILNew York’s “Freedom of Information Law”New York’s “Freedom of Information Law”

FOIA StructureFOIA StructureStatutory, not constitutional, right of access Statutory, not constitutional, right of access

(except in Florida)(except in Florida)

Right to inspect (and copy) records, not a right Right to inspect (and copy) records, not a right to information or interviewsto information or interviews

Statute applies only to enumerated agencies Statute applies only to enumerated agencies and right extends only to records or files within and right extends only to records or files within the scope of the lawthe scope of the law

What Can I Demand?What Can I Demand? InspectInspectCopyCopyReceive a copy in your preferred form Receive a copy in your preferred form

(electronic or hard copy)(electronic or hard copy)Receive redacted copies of documents or Receive redacted copies of documents or

computer databases if only some portions computer databases if only some portions are exempt from disclosure.are exempt from disclosure.

FeesFeesPaper copiesPaper copies

Computer database recordsComputer database recordsSearch feesSearch feesProgramming feesProgramming fees

Fee waivers Fee waivers

ExemptionsExemptionsCommon exemptions include:Common exemptions include:

Records revealing deliberative process, Records revealing deliberative process, including preliminary drafts or notesincluding preliminary drafts or notes

Certain records of law enforcement agencies Certain records of law enforcement agencies (relating to ongoing investigations)(relating to ongoing investigations)

Trade secretsTrade secretsRecords containing uncorroborated Records containing uncorroborated

allegations of criminal activity subject to allegations of criminal activity subject to destructiondestruction

Process and ProcedureProcess and Procedure Written requestWritten request

Get a responseGet a response Wait forever and don’t get a responseWait forever and don’t get a response

Appeal within the agencyAppeal within the agency

File a lawsuitFile a lawsuit

Tips for Making FOIA RequestTips for Making FOIA Request Ask for documents, not informationAsk for documents, not information Make a straightforward request - don’t tell the Make a straightforward request - don’t tell the

agency why you want the records or why you agency why you want the records or why you think they should be disclosedthink they should be disclosed

Break down request by categoryBreak down request by category Request a fee waiverRequest a fee waiver Include a telephone numberInclude a telephone number Keep a copy of your requestKeep a copy of your request Make sure your request is datedMake sure your request is dated

Useful Source of InformationUseful Source of InformationReporter’s Committee for Freedom of the Reporter’s Committee for Freedom of the

PressPresswww.rcfp.orgwww.rcfp.orgHow to Use the Federal FOI ActHow to Use the Federal FOI Act

Open MeetingsOpen Meetings

Anonymous Speech OnlineAnonymous Speech Online

“Right” to Speak AnonymouslyRight to speak anonymously

The Federalist PapersThe Anonymous Leaflet

Compelling a speaker to identify himself when speakingversus

Precluding the government or courts from unmasking the identity of a speaker

“Right” to Speak AnonymouslyAllegedly libelous speech, online, by

anonymous poster

Dendrite testDendrite testPlaintiff must make efforts to notify the Plaintiff must make efforts to notify the

anonymous poster and allow a reasonable anonymous poster and allow a reasonable time for him/her to respondtime for him/her to respond

Plaintiff must identify the exact statements Plaintiff must identify the exact statements made by the postermade by the poster

Complaint must set forth a prima facie cause Complaint must set forth a prima facie cause of actionof action

Plaintiff must bring forth sufficient evidence Plaintiff must bring forth sufficient evidence for each element of its claimfor each element of its claim

Court must balance the strength of the Court must balance the strength of the speaker's claim to First Amendment speaker's claim to First Amendment protection against the strength of the protection against the strength of the plaintiff's underlying legal claim and the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity. need for disclosure of the speaker's identity.

Does the shield law apply?Should it?

The EndThe End

Reporter’s Privilege

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Transcript of Reporter’s Privilege