JOHN FARMER de la TORRE Seminar in Communications Law Missouri School of Journalism

1. PROTECTIONOFCONFIDENTIAL SOURCESand related issues JOHN FARMER de la TORRE Seminar in Communications Law Missouri School of Journalism

2. PROTECTIONOF CONFIDENTIAL SOURCES

3. Branzburg v. Hayes408 U.S. 665 (1972)

4. Branzburg v. Hayes408 U.S. 665 (1972) FACTS: Branzburgpublishes stories about local drug makers and users; called before grand jury and refuse to testify • State trial court rejects reporters privilege In re Pappas - A related Rhode Island TV news story about Black Panther meeting lands reporter before grand jury; refuses to testify • SCT said serious civil disorder made appropriate reporters disclosure of what occurred in meeting U.S. v. Caldwell – Reporter refuses to turn over journalistic papers about Black Panthers, or to appear before grand jury

5. Branzburg v. Hayes408 U.S. 665 (1972) The central issue: • The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.” – Branzburg opinion The holding: • Court recognized possible evisceration of free press without some protection while seeking out the news, but it declined to offer federal immunity on criminal cases though it recognized some states do.

6. Branzburg v. Hayes408 U.S. 665 (1972) Concurrence by Justice Powell • Justice Powell said the press may find remedies in the courts when it feels it must not testify. In the meantime, balancing between press and government interests should occur. Dissent by Justice Douglas • The press has a preferred position in our constitutional scheme…to bring fulfillment to the public’s right to know…There is no higher function performed under our constitutional regime. Douglas cautioned…Those in power, whatever their politics, want only to perpetuate it.

7. Branzburg v. Hayes408 U.S. 665 (1972) Dissent by Justice Stewartjoined by Brennan and Marshall • The Court thus invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government. • SOLUTION: (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information. . . 1A requires ‘breathing space.”

8. Branzburg v. Hayes408 U.S. 665 (1972) QUESTIONS: • What is the result for lower courts of Justice Powell's concurrence? • Should lower courts recognize a qualified privilege in a narrow set of criminal cases or not? And why would civil cases be treated differently than criminal ones?

9. Cohen v. Cowles Media Co.501 U.S. 663 (1991)

10. Cohen v. Cowles Media Co.501 U.S. 663 (1991) Facts: • Dan Cohen, a political operative provides confidentially information about political opponent. • Newspapers reveal Cohen as source, he is fired and sues the papers for breach of contract. • The papers said they should not be held liable since 1A protected their right to publish. • A trial court awarded Cohen damages, an appeals court and the Minnesota Supreme Court reversed the award and a writ certiorari was granted.

11. Cohen v. Cowles Media Co.501 U.S. 663 (1991) Holding: • The courts find the press must keep its promises like anyone else. The theory used to argue this is promissory estoppel. It was not argued in the lower courts • Therefore, the media may be held liable for ‘burning’ a source if that source relied upon the promise of confidentiality.

12. Cohen v. Cowles Media Co.501 U.S. 663 (1991) Questions: • Is it ever justified to ‘burn’ a source? Why would editors chose to do so? • SCT said the press must be held to the same rules governing ordinary citizens? Why would the press argue against keeping its promises? • By promising, did the press open itself to liability and prevent the courts from using a balancing test? • Should the press be able to have its cake and eat it too?

13. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005)

14. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005) FACTS: • Judith Miller, a NYT reporter, is subpoenaed to reveal information about conversations with a secret source tied to revelation of the identity of covert CIA operative Valerie Plame. Miller refuses to submit to a grand jury and is jailed for contempt.

15. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005) CLAIM: • Miller refuses to testify arguing that: • “…the First Amendment affords journalists a constitutional right to conceal their confidential sources even against the subpoenas of grand juries… • …reporters enjoy an evidentiary privilege under the common law to conceal confidential sources…. • …adjunct to this claim, while denying that the privilege is less than absolute, they argue that if the privilege is in fact qualified, the United States has not overcome the privilege.

16. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005) ISSUES IN THE OPINION: • Who qualifies for privilege and based on what? If like therapists who qualify through licensing, would a registered press run afoul of the fundamental and individual right to publish? • Proving a negative as to how chilled sources and the press will become. • Giving constitutional cover to criminal informants.

17. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005) FINDING: • Court found no relief for Miller under the 1A. • Citing Branzburg, the court said again that the the press must obey laws like ordinary citizens. • The court is adamant about the absence of a privilege: “The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter.” HOWEVER • Miller appeals to Powell concurrence on Branzburg, that press may find a judicial remedy at a divided court.

18. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005) JUSTICE TATEL CONCURS BUT FAVORS A PRIVILEGE • Tatel says Banzburg was ambigous, and deserving clarification, but he must concur because of the case • He cites Powell’s majority-giving concurrence and rejection of a privilege with the case-by-case test Powell offers. OFFERS A TEST: • “In short, the question in this case is whether Miller’s and Cooper’s sources released information more harmful than newsworthy. If so, then the public interest in punishing the wrongdoers—and deterring future leaks—outweighs any burden on newsgathering, and no privilege covers the communication (provided, of course, that the special counsel demonstrates necessity and exhaustion of alternative evidentiary sources).“

19. In re Grand Jury Subpoena, Judith Miller438 F.3d 1141 (D.C. Cir. 2005) Questions: • Why does Judge Tatel concur on Miller and recognize a common law privilege but find that it is overcome by the circumstances in the case? • Tatel speaks of a clash of 2 truth-seeking institutions; however, courts defer to national security which is structurally opaque. How can this conflict be resolved? • Are journalists the best judges of when to invoke a journalist privilege? • Is Tatel’s test an improvement on Powell’s?

20. United States v. Sterling724 F.3d 482 (4th Cir. 2013)

21. United States v. Sterling724 F.3d 482 (4th Cir. 2013 ) FACTS: • Jeffrey Sterling, a former CIA employee, was indicted for providing classified information about a secret Iranian nuclear operation to reporter James Risen. Sterling was charged and convicted under the Espionage Act of 1917. Risen sought a journalist privilege to refuse to testify.

22. United States v. Sterling724 F.3d 482 (4th Cir. 2013 ) PETITIONERS CLAIM: • Petitioners cited Justice Powell’s Branzburg concurrence. They said it amounted to a tacit agreement with the dissenting justices that a privilege ought to exist. • The court said in its opinion: “We have been called upon in this appeal to decide whether there exists in the criminal context a First Amendment privilege for reporters to decline to identify their confidential sources

23. United States v. Sterling724 F.3d 482 (4th Cir. 2013 ) DECISION: • Branzburg offers no privilege, nor does common-law per Federal Rule of Evidence 501 (rules on Privilege) or Redmond v. Jaffe (created psychotherapist-patient privilege). DISSENT OF JUSTICE GREGORY: • Justice Gregory recites long list of journalistic investigations of government wrongdoing that served the public and that relied on confidential sources—this body of evidence is justification for a privilege. Gregory favors the LaRouche test as an ‘aid’ and on matters of national security says two additional factors must be weighed: the harm caused by the dissemination of the information, and the newsworthiness of the information conveyed.

24. United States v. Sterling724 F.3d 482 (4th Cir. 2013 ) DISSENT OF JUSTICE GREGORY: • Justice Gregory recites long list of journalistic investigations of government wrongdoing that served the public and that relied on confidential sources—this body of evidence is justification for a privilege. • Gregory favors the LaRouche test as an ‘aid’ and on matters of national security says two additional factors must be weighed: the harm caused by the dissemination of the information, and the newsworthiness of the information conveyed. • Says a qualified privilege should exist in common law—and that this is supported by 49 state shield laws, and should be recognized under Rule 501.

25. United States v. Sterling724 F.3d 482 (4th Cir. 2013 ) Questions: • Reflecting again on Branzburg, should lower courts recognize a qualified privilege? Should a privilege be extended to criminal cases • Why does Judge Gregory dissent and suggest there should be a qualified constitutional privilege considering the circumstances of the case? • How are the Miller and Sterling cases different factually and legally?

26. questions questionsquestions

27. GENERAL QUESTIONSRE: confidential sources Questions: • What do you make of the trend to name journalists as co-conspirators? • Do the majority on Branzburg have a point about who should a journalists privilege cover? What about bloggers or independent media? Or hackivist groups that leak source information? • What is the proper design for a common law privilege and who should write it: judges or legislatures?

28. GENERAL QUESTIONSRE: confidential sources Questions: • District attorney’s calculate immunity all the time, so what of the majority’s claim on Branzburg that it would be too difficult? • What of Douglas’ Branzburgcontention that deference to government would lead to a free press made of press releases? Has it come to pass considering Obama’s anti-leak campaign? • What of the powerful mechanism of communication? Could encryption be one of self-protection too? • Can the press defend itself? Can it legally act in self-defense?