{"id":65,"date":"2015-06-01T20:55:28","date_gmt":"2015-06-01T20:55:28","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=65"},"modified":"2025-12-14T18:46:47","modified_gmt":"2025-12-14T18:46:47","slug":"news-privilege","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/ethics\/news-privilege\/","title":{"rendered":"Shield laws, newsroom searches and trespass"},"content":{"rendered":"

In the run-up to the 2024 presidential campaign, <\/strong>Donald Trump promised he would jail reporters who refused to reveal sources<\/a> and would press treason charges against networks reporting unflattering things. \"\"<\/a><\/p>\n

Usually it is\u00a0the courts<\/em><\/strong> who have punished journalists when they refused to name sources under a direct court order.\u00a0 But this has been controversial and contested — and, fortunately, rare.<\/p>\n

From a journalist’s standpoint, the basic question is:<\/p>\n

Do reporters have the\u00a0right, or the ethical duty, to keep sources confidential?<\/strong> \u00a0Is there a privilege to protect sources? Do they have the same kind of privilege that exists between a lawyer and a client or a member of the clergy and a parishioner?\u00a0 The legal answer is mostly no, the ethical answer is an emphatic yes.<\/p>\n

Confidential sources are important to journalists and to society in that they help journalists exercise the constitutionally protected \u201cwatchdog\u201d function. Journalists are ethically determined to protect their sources \u2014 Many have gone to jail to do so and, in fact, promises of confidentiality are considered to be contracts that may be enforced.<\/p>\n

The legal question is whether there is a right to shield sources from court or grand jury inquiries. Recent court decisions that may (or may not) be overturned in the future. This is an unsettled area of law.<\/p>\n

According to an article by Stephen Bates, the first incident of this kind was in 1848 when reporter John Nugent of the New York Herald was jailed by Congress for refusing the reveal the source of a leak about a treaty with Mexico.\u00a0 In recent years, the problem of protecting sources has shown up in films like Absence of Malice and Nothing But the Truth.*<\/a>\u00a0 In both of those fictional situations reporters refused to reveal their sources to authorities who had other concerns.<\/p>\n

In the 1960s, reporters were often called in front of grand juries to testify about sources who said they smoked marijuana or took other drugs. \u00a0Quite often the reporters refused to name people involved and, as a result, were fined or spent a small amount of time in jail. These cases culminated in the Branzburg v Hayes case, where reporters for the Louisville Courier Journal refused to give information about sources for an article on marijuana cultivation in Kentucky. The case went to the Supreme Court, which was evenly split \u00a0(4-4) on the question of whether reporters had a privilege to shield their sources.<\/p>\n

Some states, in response, passed shield laws, and currently at least 31 have shield laws on the books. Some, like Maryland, had shield laws in place for over a century.<\/p>\n

According to the Reporter\u2019s Committee for Freedom of Information:<\/p>\n

\u201cCourts have always recognized the concept of \u201cprivileges,\u201d allowing certain individuals to refuse to testify, out of an acknowledgment that there are societal interests that can trump the demand for all evidence. Journalists need to emphasize to both the courts and the public that they are not above the law, but that instead they must be able to remain independent, so that they can maintain their traditional role as neutral watchdogs and objective observers. When reporters are called into court to testify for or against a party, their credibility is harmed. Potential sources come to see them as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes.\u201d<\/p><\/blockquote>\n

Incidents involving protection of sources include:<\/strong><\/p>\n

In RE Farber, 1978<\/a><\/strong> \u2014 New York Times reporter Myron Farber refused to comply with a court subpoena to turn over notes from an investigation into an ongoing murder case. Farber spent 40 days in jail and was later pardoned by the governor of New Jersey.<\/p>\n

In 2001, Vanessa Leggett<\/strong>, a book author, spent more than five months in detention for refusing to answer questions about her sources.<\/p>\n

In 2004, New York Times reporter Judith Miller<\/strong> spent 12 weeks in jail for refusing to name a source in the Plame Affair involving the identity of a CIA agent.<\/p>\n

In 2006, freelance videographer Joshua Wolf<\/strong> was jailed by a Federal district court for refusing to hand over videotapes he made during a demonstration in July 2005 in San Francisco. Wolf was jailed for 226 days, longer than any other journalist in U.S. history (so far), beating the five month record set in 2001 by Vanessa Leggett.<\/p>\n

Journalists often make a claim that their communication with a source is privileged under the First Amendment. Privilege in this context is similar to attorney-client privilege or the privileged communication between clergy and members of their churches. What it means is that reporters should not be forced to testify in a court or grand jury proceeding about their sources, nor should they have to turn over information that could implicate sources.<\/p>\n

In some cases, journalists may have crucial evidence for the court. But in most cases, such as the grand jury hearings about CIA leaks to New York Times reporter James Risen in 2010, the evidence a journalist would \u201csimply amount to icing on the cake.\u201d<\/p>\n

Reporters are not supposed to be called before grand juries if the government had not previously exhausted other means to gather information or if enough evidence for indictment had already been obtained.<\/p>\n

Why do journalists deserve special treatment? The argument is that the specific Constitutional guarantee of freedom of the press must entail a freedom to gather information. Supporting this argument is James Madison\u2019s famous statement: \u201cPopular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy.\u201d While this applies to the FOIA law, it also applies to a reporter\u2019s relationship with a source in that this relationship is central to press freedom.<\/p>\n

The major Supreme Court decision in this area was evenly split in the Branzburg case in 1972 (below). Some state legislatures have passed \u201cShield Laws,\u201d in effect giving the claim of privilege limited recognition.<\/p>\n

For an explanation of why confidentiality is good for the public interest, see this account of a rural Virginia prison break<\/a>.\u00a0 \u00a0 The law in Virginia is here:\u00a0 \u00a7 19.2-271.5. Protected information; newspersons engaged in journalism.<\/a><\/p>\n

Also see this New York Times Oct. 11, 2024, editorial: A Reporter\u2019s Shield Law Is Vital to Prevent Abuses of Power <\/a>“Governments often chafe at the presence of a free press. The reason is simple: A robust and independent news media keeps a sharp eye on government and, when necessary, exposes abuse of power, corruption, incompetence and waste. Exposing such things depends, of course, not just on journalists but also on brave officials willing to sound the alarm about government misconduct.”<\/p>\n

The\u00a0 “Reporters Committee\u00a0 for Freedom of the Press” is urging\u00a0 Congress To Pass the PRESS Act” <\/a><\/p>\n

For a more detailed history of the legal history of reporter privilege, listen to this On The Media podcast of May 26, 2023.\u00a0\u00a0<\/a><\/p>\n

Also, Jane Mayer of the New Yorker briefly discussed shield laws<\/a> at the Nieman Foundation.<\/p>\n

Historical cases:<\/strong><\/p>\n

** Branzburg v Hayes, 1972 \u2013<\/strong>\u2013 Marijuana and black panther cases where reporters refused to reveal sources. Court was evenly split 4-4 with one vote saying reporter privilege was appropriate in some circumstances.<\/p>\n

** Cohen v Cowles Media, 1991 \u2013<\/strong>\u2013 Republican public relations guy Dan Cohen sued after being promised confidentiality by a Minneapolis Star Tribune reporter. Justice White said \u201cThe First Amendment does not confer on the press a constitutional right to disregard promises that could otherwise be enforced under state law\u2026\u201d<\/p>\n

Silkwood v. Kerr McGee, 1984<\/strong> \u2014 In preliminary motions, courts denied Kerr McGee\u2019s attempt to get documentary filmmakers to reveal sources. The backstory to the Silkwood case, however, is very interesting. Karen Silkwood was a worker at a defense plant processing plutonium for atomic bombs. She was on her way to a meeting with a New York Times reporter to discuss security violations a the plant when the car she was driving was forced off the road. A film made about the incident used other confidential sources. When the plutonium plant owners wanted those sources revealed, the courts refused.<\/p>\n

Shoen v. Shoen, 1993<\/strong> \u2014 Book author may invoke reporter privilege when subpoenaed for information when all other avenues to the information have not been exhausted.<\/p>\n

Chevron oil company\u00a0<\/a> <\/strong>allowed to subpoena\u00a0Joe Berlinger outtakes from documentary film\u00a0 \u201cCrude\u201d in 2010. \u00a0 The complicated case ended in a Chevron victory<\/a> over environmental critics, in part because all outtakes from the documentary film were subject to court scrutiny.<\/p>\n

In 2023, Virginia courts refused to subpoena a reporter<\/strong><\/a> who published information about a divorce proceeding involving state\u00a0Sen. Joe Morrissey<\/a>, D-Richmond.\u00a0 Morrissey subpoenaed\u00a0 Brandon Jarvis, editor of the Virginia Scope<\/a> newsletter, in order to see text message with the reporter and Morrissey\u2019s estranged wife, Myrna, or members of her family. Virginia is one of the few states with no formal shield law, so the judge could have let Morrissey’s subpoena stand, but said Sen. Morrissey needs to exhaust other options first before trying to get that information from the reporter.\u00a0 Without a shield law, a subpoena could still be enforced.\u00a0<\/span><\/p>\n

Newsroom searches<\/strong><\/h4>\n

* Zurcher v. Stanford Daily, 1976<\/strong> \u2014 newsroom searches were not illegal according to the courts; In 1980, Congress passed the Privacy Protection Act and overruled the Zurcher decision. Under the law, subpoenas are preferred to ex parte proceedings such as search warrant requests, which only be issued:<\/p>\n