Protection of News Sources

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Protection of News Sources

• Chapter 9

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Use Espionage Act against reporters?

• CIA secret prisons

• Unauthorized wiretaps

New York Times reporters James Risen (center) and
Eric Lichtblau (right) presented by Columbia
University president Lee Bollinger with Pulitzer
prize for their reporting on national security
issues
The Washington Posts Dana Priest revealed the
existence of secret CIA prisons in Europe
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Reporters in Jail
Time reporter Matthew Cooper (left) avoids jail
time when his source (Scooter Libby, right)
releases him from his pledge of confidentiality.
Judith Miller Vanessa Leggett (jailed for
refusing to reveal sources)
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Breaking the Code

• On the Record use it, AND say from whom
• Off the Record dont quote ?
• On Background May attribute, but vaguely
• Sources in a position to know

• Highly placed sources
• Administration sources
• Sources speaking upon a promise of anonymity
• On Deep Background No mention of source
• CNN has learned

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Branzburg v. Hayes

• Louisville Courier reporter
• Wrote stories about drug synthesizers

• Local DAs wanted him at grand jury
• He argues.
• He should not have to reveal his sources
• He should not have to appear at all
• Supreme Court White rules against him

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Whites Branzburg opinion

• No reporter exemption from citizen duties
• Better to do something about crime than just to
  write about it

• States and Congress may pass reporter shield laws
  if they want
• Who is a reporter, anyway?

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Still more on Branzburg v. Hayes

• Powell concurrence
• No fishing expeditions
• Douglas, Stewart dissents
• Dissidents

• Public spirited person inside government

• Stewarts dissent gives some rules
• Lower courts have adopted these when they can

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Aftermath of Branzburg
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Reporters likely to testify if

• Grand Jury
• Reporter witnessed things with own eyes
• No confidentiality had been pledged
• Reporter is a libel defendant

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Otherwise, courts follow Stewart

• Reporter likely has the info
• Compelling interest in getting it
• Cant get it elsewhere

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Reporter Shield Statutes

• More than half the states have them
• Much variety
• Who is covered?
• Must confidentiality have been explicitly
  promised?
• What kinds of information are protected?
• From what forums? (can include grand juries)

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DOJ standards

• Two admonitions
• Make all reasonable attempts to get info
  elsewhere
• Make sure that the info is essential
• No remedies provided

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Zurcher v. Stanford Daily

• Newsroom Searches
• No third party exception for newsrooms
• Strongly worded dissent from Stewart Marshall

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Privacy Protection Act
Not a Search Warrant
Use a subpoena
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Exceptions for Work Product

• Reporter is NOT a third party
• Death or serious physical harm
• National security

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Additional exceptions for Documentary Materials

• You will destroy the evidence

• History of disobeying subpoenas

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Cowles Publishing v. Cohen

• Promised confidentiality

• Betrayed Source

• Damages for fraud