Government as Investigator: Reporter's Privilege
Government as Investigator: Reporter’s Privilege. — News organizations have claimed that the First Amendment status of the press 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.780 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. Hayes781 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.”782 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.783clubjuris
780 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).
781 408 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.
782 408 U.S. at 690-91.
783 Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court’s opinion. Justice Powell also submitted a concurring opinion in which he suggested that reporters might be able to assert a privilege of confidentiality if in each individual case they demonstrated that responding to the governmental inquiry at hand would result in a deterrence of First Amendment rights and privilege and that the governmental interest asserted was entitled to less weight than their interest. 408 U.S. at 709. Justice Stewart dissented, joined by Justices Brennan and Marshall, and argued that the First Amendment required a privilege that could only be overcome by a governmental showing that the information sought is clearly relevant to a precisely defined subject of inquiry, that it is reasonable to think that the witness has that information, and that there is not any means of obtaining the information less destructive of First Amendment liberties. Id. at 725. Justice Douglas also dissented. Id. at 711.
The courts have construed Branzburg as recognizing a limited privilege that must be balanced against other interests. See In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); cf. United States v. Criden, 633 F.2d 346 (3d Cir. 1980).
The Court observed that Congress and the States were free to develop by statute privileges for reporters as narrowly or as broadly as they chose; while efforts in Congress failed, many States have enacted such laws.784 The assertion of a privilege in civil cases has met with mixed success in the lower courts, the Supreme Court having not yet confronted the issue.785
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.786 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 news-rooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.787clubjuris
784 At least 26 States have enacted some form of journalists’ shield law. E.g., Cal. Evid. Code § 1070; N.J. Rev. Stat. 2A:84A-21, -21a, -29. The reported cases evince judicial hesitancy to give effect to these statutes. See, e.g., Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912 (1976). The greatest difficulty these laws experience, however, 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).
785 E.g., Baker v. F. & F. Investment Co., 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973); Democratic National Comm. v. McCord, 356 F. Supp. 1394 (D.D.C. 1973).
786 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.
787 Congress has enacted the Privacy Protection Act of 1980, Pub. L. No. 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.