Confidentiality

1
Confidentiality

• Keeping Media Secrets

2
Josh Wolf

• Video blogger
• 24 years old
• Filmed San Francisco protest July 8, 2005
• Refused to turn over unaired footage to federal
  investigators
• In jail since September 2006

3
Vanessa Leggett

• Hoped to write a true-crime novel
• Refused to turn over notes to a federal grand
  jury
• Jailed for 168 days
• Released Jan. 4, 2002

4
Confidentiality

• Why grant it to sources in the first place?
• Whistleblowers
• Privacy
• Possible criminal activity

5
Journalists Subpoenas

• 1997 2,725
• 1999 1,326
• 2001 823

• Recent high-profile cases
• Judith Miller
• Josh Wolf
• Linda Tracy

6
How we got hereBranzburg v. Hayes (1972)

• 5-4 decision
• Justice Byron White
• We cannot seriously entertain the notion that
  the First Amendment protects a newsmans
  agreement to conceal the criminal conduct of his
  source, or evidence thereof, on the theory that
  it is better to write about crime than to do
  something about it.

7
Branzburg v. Hayes

• Justice Lewis Powells concurrence
• Sounds more like a dissent
• Some First Amendment protection should apply,
  especially if journalists believe theyre being
  harassed.

8
Dissent in Branzburg

• Justice William O. Douglas
• Journalists should have absolute privilege.
• Predicts a chilling impact on reporting if
  journalists cant protect sources

9
Dissent in Branzburg

• Stewart, joined by Brennan and Marshall
• Not quite absolute privilege, but there should be
  a qualified privilege
• Reporters ought to be able to protect
  confidential sources unless govt can show
• Info is clearly relevant to a specific violation
  of law
• Cant get info any other way
• State has a compelling and overriding interest in
  it

10
Judith Miller

• NYT reporter called to testify before a federal
  grand jury
• Moves to quash the subpoena
• Appeals court judge refers to Branzburg The
  Highest Court has spoken and never revisited the
  question. Without doubt, that is the end of the
  matter.

11
Shield Laws

• Federal none.
• States
• Maryland the first, 1896
• 32 states now have them, including Montana
• Washington passed one last month the 33rd.

12
Montana Shield Law

• First passed 1943 as Reporters Confidence Act
• Now Media Confidentiality Act, MCA 26-1-902