Division Among The Courts On Recognition And Scope Of Reporter's Privilege

With renewed interest on possible legislation recognizing a reporter's privilege, the courts remain divided on whether to recognize a reporter's privilege and on the scope of any privilege; the division was noted by the Seventh Circuit in McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003); will legislation be enacted in this Congress to recognize a privilege?

The Federal Evidence Blog has noted that based on recent events there appears to be renewed interest in legislation recognizing a reporter's privilege. With new Department of Justice guidelines limiting the use of search warrants and court orders to obtain evidence from reporters, Attorney General Eric H. Holder, Jr. indicated that "there are additional protections that only Congress can provide" and the administration "continue[s] to support the passage of media shield legislation."

While some courts recognize a reporter's privilege, there is disagreement about the source of a privilege, its contours and its scope. The division was noted in an interesting case considered by the Seventh Circuit. McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003).

The case involved a prosecution in Ireland based on the defendant's membership in a banned organization and for his role in "directing terrorism." A request was made for the production of certain tape recordings held by a group of journalists, pursuant to 28 U.S.C. § 1782 (assistance to foreign and international tribunals and to litigants before such tribunals). The district court ordered that the tapes be produced. The order was appealed to the Seventh Circuit which surveyed the division among the courts.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court majority explicitly rejected the argument that the First Amendment protected a journalist from disclosing sources in a grand jury investigation:

Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. 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 that 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.”

However, Justice Lewis F. Powell, Jr.'s concurring opinion suggested that the door may be open to recognizing a privilege in an appropriate case. His vote was critical to the 5 to 4 opinion.

In canvassing the cases, the Seventh Circuit noted:

A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege, though they do not agree on its scope. See, e.g., In re Madden, 151 F.3d 125, 128-29 (3d Cir. 1998); United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); Shoen v. Shoen, 5 F.3d 1289, 1292-93 (9th Cir. 1993); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988); von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986). A few cases refuse to recognize the privilege, at least in cases, which Branzburg was but this case is not, that involve grand jury inquiries. In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir. 1993); In re Grand Jury Proceedings, 810 F.2d 580, 584-86 (6th Cir. 1987). Our court has not taken sides.

Some of the cases that recognize the privilege, such as Madden, essentially ignore Branzburg, see 151 F.3d at 128; some treat the “majority” opinion in Branzburg as actually just a plurality opinion, such as Smith, see 135 F.3d at 968-69; some audaciously declare that Branzburg actually created a reporter’s privilege, such as Shoen, 5 F.3d at 1292, and von Bulow v. von Bulow, supra, 811 F.2d at 142; see also cases cited in Schoen at 1292 n. 5, and Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975). The approaches that these decisions take to the issue of privilege can certainly be questioned. See In re Grand Jury Proceedings, supra, 810 F.2d at, 584-86. A more important point, however, is that the Constitution is not the only source of evidentiary privileges, as the Supreme Court noted in cite>Branzburg with reference to the reporter’s privilege itself. 408 U.S. at 689, 706. And while the cases we have cited do not cite other possible sources of the privilege besides the First Amendment and one of them, LaRouche, actually denies, though without explaining why, that there might be a federal common law privilege for journalists that was not based on the First Amendment, see 841 F.2d at 1178 n. 4; see also In re Grand Jury Proceedings, supra, 5 F.3d at 402-03, other cases do cut the reporter’s privilege free from the First Amendment. See United States v. Cuthbertson, 630 F.2d 139, 146 n. 1 (2d Cir. 1980); In re Grand Jury Proceedings, supra, 810 F.2d at 586-88; cf. Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 n. 2 (2d Cir. 1999).

McKevitt, 339 F.3d at 532.

Ultimately, the Seventh Circuit did not recognize the reporter's privilege and found the order for the production of tape recordings "was clearly sound." While the case arose in a unique posture, it highlights the uncertainty in the courts on the contours of any reporter's privilege. Ultimately, Congress has the authority to clarify this issue. As previously noted, the House of Representatives twice passed legislation which would establish a journalists' privilege on March 31, 2009 by voice vote, and on October 16, 2007 by a vote of 398 to 21. The Senate Judiciary Committee has twice reported out legislation which then died in the Senate, including in 2009 and 2007. For more information, see Prior Blog Posts on the Reporter Shield Law.


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