Government as Investigator: Reporter’s Privilege.

News or-ganizations have claimed that the First Amendment compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.966 The argument for a limited exemption to permit reporters to conceal their sources and to keep confidential certain information they obtain and choose at least for the moment not to publish was rejected in Branzburg v. Hayes967 by a closely divided Court. “Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”968 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice White for the Court, but the conditional nature of the privilege claimed might not mitigate the deterrent effect, leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.969

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.970 Although efforts in Congress have failed, 49 states have done so—33 (plus the District of Columbia) by statute and 16 by court decision, with Wyoming the sole holdout.971 As for federal courts, Federal Rule of Evidence 501 provides that “the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”972 The federal courts have not resolved whether the common law provides a journalists’ privilege.973

Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation.974 The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, but it seemed to doubt that the consequences alleged would occur, and it observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.975

Footnotes

966
8 J. WIGMORE, EVIDENCE 2192 (3d ed. 1940). See Blair v. United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 339 U.S. 323, 331 (1950). back
967
408 U.S. 665 (1972). “The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.” Id. at 682. back
968
408 U.S. at 690–91. The cases consolidated in Branzburg all involved grand juries, so the reference to criminal trials should be considered dictum. back
969
Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court’s opinion. Justice Powell, despite having joined the majority opinion, also submitted a concurring opinion in which he suggested a privilege might be available if, in a particular case, “the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” 408 U.S. at 710. Justice Stewart’s dissenting opinion in Branzburg referred to Justice Powell’s concurring opinion as “enigmatic.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though providing the majority’s essential fifth vote, he [Powell] wrote separately to outline a ‘case-by-case’ approach that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters’ claims.” In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006). “[C]ourts in almost every circuit around the country interpreted Justice Powell’s concurrence, along with parts of the Court’s opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context.” Association of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper (2005) at 4–5 [http://www.abcny.org/pdf/report/White%20paper%20on%20reporters%20privilege.pdf] (citing examples). back
970
408 U.S. at 706. back
971
The 33rd state statute enacted was the State of Washington’s, which took effect on July 22, 2007. See the website of the Reporters Committee for Freedom of the Press for information on the state laws. The greatest difficulty these laws experience is the possibility of a constitutional conflict with the Fifth and Sixth Amendment rights of criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. denied sub nom. New York Times v. New Jersey, 439 U.S. 997 (1978). See also New York Times v. Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay). back
972
Rule 501 also provides that, in civil actions and proceedings brought in federal court under state law, the availability of a privilege shall be determined in accordance with state law. back
973
See, e.g., In re: Grand Jury Subpoena. Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the District of Columbia “is not of one mind on the existence of a common law privilege”). back
974
Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978). Justice Powell thought it appropriate that “a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment” when he assesses the reasonableness of a warrant in light of all the circumstances. Id. at 568 (concurring). Justices Stewart and Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice Stevens dissented on Fourth Amendment grounds. Id. at 577. back
975
Congress enacted the Privacy Protection Act of 1980, Pub. L. 96–440, 94 Stat. 1879, 42 U.S.C. § 2000aa, to protect the press and other persons having material intended for publication from federal or state searches in specified circumstances, and creating damage remedies for violations. back