Outline No. 7 -- Newsgathering Issues

Plopper Assignment: Chapter 5

Optional Middleton Assignment: Chapter 10

PROTECTION OF NEWS SOURCES, NOTES & TAPE

The issue is whether reporters have a privilege that other citizens don't have to refuse to testify about (or otherwise reveal to authorities) the source of information they have. Most citizens have an obligation to answer questions relevant to a criminal investigation.

Why shouldn't the media ALWAYS cooperate with government investigations? To preserve their credibility, journalists should avoid appearing to be agents of the state.

I Qualified Privilege: Constitutional Protection

Generally, journalists have no more protection than public persons, but some courts recognize a qualified privilege that journalists have because of their role as the Fourth Estate.

II Common Law development: (in FEW courts, varies by state or circuit)

Branzburg v. Hayes, 408 U.S. 665 (1972) &endash; 5-4 majority held journalists must testify when called. But Justice Potter Stewart wrote a dissent that was picked up by the courts below and basically has become the law.

The Stewart test: That, before a reporter is compelled to testify, the government has the burden of proof to show there is:

a) probable cause to believe that a reporter has information "clearly relevant" to a specific violation of the law;

b) evidence that the information sought cannot be obtained by alternative means less destructive of First Amendment values, and

c) a compelling and overriding interest in the information.

LEAST PROTECTION:

Under common law or First Amendment, least protection comes when reporters are called to:

• testify before grand jury
• testify to what they witnessed themselves
• reveal nonconfidential information
• testify in a suit the reporter herself/himself brought about by publication (libel, privacy)

III Statutory protection

Arkansas Shield Law, adopted in 1936:

"Before any editor, reporter, or other writer for any newspaper, periodical, or radio station, or publisher of any newspaper or periodical, or manager or owner of any radio station shall be required to disclose to any grand jury or to any other authority the source of information used as the basis for any article he may have written, published, or broadcast, it must be shown that the article was written, published or broadcast in bad faith, with malice, and not in the interest of the public welfare." (Ark. Annot. Code 16-85-510)

Questions to ask about a state's shield law:

• Who is protected?
• Is a promise of confidentiality required?
• What information is protected?
• Is publication required?
• Where does privilege applies? grand jury? in front of any authority?
• Are there actions by the journalist that can create a waiver?
• Are there exceptions?

SEARCH WARRANTS (distinguish from subpoenas, as in the cases above)

IV Statutory Protection from Search Warrants

Privacy Protection Act of 1980

A. Work product materials: notes, story drafts, opinions, mental impressions may be searched for only:

1. if there is probable cause to believe reporter has committed a crime;

2. if there are reasons to believe seizure is necessary to prevent an injury or death;

3. if the materials relate to national defense, classified information or restricted data under federal espionage laws.

B. Documentary materials: videotapes, audiotapes, photographs and other raw materials of newsgathering may be searched for (in addition to the reasons above ...)

4. if there is a belief that reporter would destroy or conceal the materials if served with a subpoena; or

5. if the reporter has not turned over the materials in response to a court order and further delays would obstruct justice.