October 17, 2011
Situation- You’re a reporter and you’ve just been assigned to write a story about drug use. While, with a story like that, the best way to tell it would be from the words of those who use drugs and know what they are talking about. So you go find said users, interview them and, after requested, tell them that they will remain annoymous in the story.
Soon after the story is published, you are approached by law enforcement agents who want to know the names of the people you interviewed for your story. eventually you get a subpoena to come to court, where you are ordered to give the names of your sources even though you promised them that their names would not be made public. What would you do? Do you have the right to protect the names of your sources even though it people who are breaking the law that you are protecting?
Legal Background- Branzburg v. Hayes (1972). Paul Branzburg was a reporter for the Louisville Courier-Journal. He wrote two articles that concerning drug use in Kentucky and during his research for the articles, he witness and interview several people who used marijuana. The sources all requested that not to be idenified. However, the articles soon reached the police, and soon Branzburg received a subpoena to appear before a grand jury. He was ordered to reveal the names, but refused. He citied privilege under the Press Clause, but was held in contempt for refusing to name the names.
The case went all the way to the Supreme Court. There the argument continued to be hotly debated until the Court finally made a decision. They voted 5-4 against the reporter and the existence of reporter privilege in the First Amendment. It was stated that this would have given newspaper writers testimonial privilege that other citizens did not have. However, the court also stated that the government “must convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”
Justice Powell, who sided with the majority, expressed that the decision had a “limited nature.” He said “…there is a privilege analogous to evidentiary one, which courts should recongnize and apply on case by case to protect confidential information. My vote turned on my conclusion… that we should not establish a constitutional privilege.”
Since then several lower courts have interpreted those words as indicating that reporter privilege does exist, but must be decided on each individual case. This means that in the specific case of Branzburg, there wasn’t enough for the privilege to apply, but it could apply to other cases with different circumstances.
Links-
2) http://scholar.google.com/scholar_case?case=11598860258825518787&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Questions-
1) How do you think “Branzburg” would have been ruled today? The views toward drugs like marijuana have changed somewhat, with the access to medical weed.
2) While the court decided against reporter privilege. they left it somewhat open-ended. What cases since “Branzburg” have decided there is such a privilege and which ones have decided that there isn’t?
3) Do you think there are certain crimes and actions that reporters can cover and keep sources secret with the privilege? Are there cases that have defined what crimes, such as drug use, reporters can hold back their sources names and other crimes defined as not, such as more serious crimes like robbery or even murder?
6 thoughts on “Discussion- Reporter Privilege by Bryan Warrick”
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October 20th, 2011 at 8:35 pm
I think we can see a similar parallel in the court case “Bong Hits for Jesus.” What I mean by this is that the court in that case stated that there was a clear government interest in preventing illegal drug use. In that case the students were not even using illegal drugs, they just referenced illegal drugs. This case was in 2002, so I believe that the Branzburg case would be held to a similar standard. Using marijuana is illegal unless someone has a medical reason to use it, therefore the police and the government are going to attempt to prevent drug use from transpiring. I think that since the people in the Branzburg case are considered to be criminals for using illegal drugs then the courts would uphold the case in the same was as in the 1970s.
While I do believe that cases such as Branzburg create a chilling effect for reporters, the interest in protecting people or solving murder cases should take the highest priority. I am not saying that the police should have the right to burst into a news room anytime they want to obtain information. Or that the police should have the right to make journalists reveal their sources in every situation. However, that is why the Branzburg test exists; to determine the validity of police searches or forcing journalists to reveal their sources. If there is no other way to obtain the information necessary to help solve a murder case; then the journalist must be compliant with the police.
I believe leaving this type of situation up to a case by case matter is much more benefitial to both the journalists and the police. When over-general laws and decisions are made then both parties stand to lose something. When the courts can decide the validity or necessity of a search each time then there is more room for the journalist to do his or her job.
October 20th, 2011 at 10:08 pm
Due to the low-profile nature of the sources whose identity the journalist is seeking to conceal in this scenario, I do not think the court would rule in favor of law enforcement today. Because it has generally been established that situations such as this will be decided on an ad hoc basis, a call for identification would likely not be warranted because there is not a compelling enough government interest in acquiring the names of the users utilized in this story. Were these interviews conducted with higher-profile offenders such as prominent dealers who have a greater impact on the security of society, the ruling may be different.
While the official ruling in this case refuted the argument of a reporter privelege, it was the dissent that really established the precedent for future cases. In Cohen v. Cowles Media Co. there was established a mechanism known as promissory estoppel, which protects a source’s identity when the journalist he/she speaks to makes a promise to keep their identity confidential.
Because this matter is deemed to be determined largely on an ad hoc basis, though with some criteria established, it is possible a journalist could still be required to reveal a source’s name. I do not personally agree with this, however. A journalist gains information from unlawful sources simply on the merit of that they are a journalist writing an objective story and is understood to be protective of those identities. The general public does not have access to the same information, besides those inclusive to the crime at hand,therefore it feels incorrect to examine a journalist’s privilege in comparison to that of an ordinary citiizen.
A journalist’s access to information as sensitive as the likes sought to be exposed by those in opposition to the reporter’s privilege is information the general public would often benifit from hearing. Law enforcement should use these stories as tools for better understanding subjects or inIf this principle of a reporter’s privilege evaporates, the public will be shorted of this information; and this would be a detriment to society.
October 20th, 2011 at 10:13 pm
*Law enforcement should use these stories as tools for better understanding subjects in cases. They should not abuse the journalists’ informational access irresponsibly and if this principle of …*
October 21st, 2011 at 8:12 pm
In regards to the first question I do not think this would have been as big of an issue if it happened today. While illegal usage of marijuana is still seen as a crime, whether it is major or not is not determined. I think a drug such as cocaine/crack, prescription drugs, or meth might be seen as more serious crimes that might call for a reporter to be ordered to reveal names. Also, as mentioned weed is now used for medicinal purposes which too desensitizes it and makes it more socially excepted.
I am not sure if there are any cases that might be close to this but I am sure so.
In my opinion I do believe there comes a time when information should be revealed if it can help solve a major crime. I can understand keeping names anonymous if it wont help solve the crime, but for the opposite something needs to be said.
October 27th, 2011 at 1:02 am
How are journalists supposed to gather information about “taboo” topics if they are afraid of repurcussions and pressure to reveal their sources? While the Branzburg Test made it fairer for journalists, in the sense that they began to recieve greater protection and allowances, because the test served to watch over the validity of the statements forcing journalists to reveal their sources, it still did not stop by any means attempts by courts to perpetute actions toward journalists to get them to reveal who they have been interviewing.
It seems, as Troy said, that journalists do deserve some sort of protection not to reveal their sources, besides the Branzburg Test, because the average person does not take advantage of access to sources as much as journalists do. My question then is: If journalists did recieve some sort of special right to protect their anonymous sources, would bloggers, twitter fiends, even rappers, claim to be journalists in order to recieve some of these special rights? If so, would the courts be able to manage all of the “journalists,” writing about controversial, dangerous issues and using anonymity to protect sources?
December 12th, 2011 at 3:15 pm
Good post, but don’t forget an important test came out of the Branzburg case. What was it?