The Reporter's Privilege: Where Does The Proposed Federal Shield Law Stand And What Impact Would It Have?

The right of journalists to refuse to testify regarding information or sources obtained as part of the news-gathering process, known as the reporter’s privilege, has been recognized by 49 of the 50 states and the District of Colombia. However, these existing protections are only applicable in state court. Federal law offers no statutory reporter’s privilege, leading to high-profile federal court cases in which a journalist is forced to choose between revealing confidential sources or spending time in jail for contempt of court.

The most prominent recent example is the case of New York Times reporter James Risen, who wrote a book detailing the CIA’s effort to disrupt Iran’s nuclear program. The federal government sought to compel Risen’s testimony regarding his sources. The Fourth Circuit Court of Appeals ordered Risen to testify, and on June 2, the Supreme Court refused to hear Risen’s appeal. If the government does not withdraw its subpoena, Risen must testify or face jail time.

These events underscore the renewed calls for a federal “shield law” which would recognize a reporter’s privilege in federal cases. In late May, Rep. Alan Grayson (D-Fla.) proposed an amendment to an appropriations bill for the United States Justice Department and other agencies. The amendment states that none of the funds made available by the appropriations bill may be used to compel a journalist to testify about information or sources the journalist regards as confidential. The amendment passed with bipartisan support, and the appropriations bill itself passed the House. If the amendment survives Senate scrutiny and is enacted into law, it would apply to the Justice Department and federal prosecutors. But the amendment leaves some critical issues unaddressed. Specifically, it does not contain an exception for matters with potentially serious national security consequences, and it does not define who can claim protection as a “journalist.”

The House is not alone in contemplating how to recognize the reporter’s privilege. A Senate bill (S. 987) introduced in May 2013, referred to as the Free Flow of Information Act, passed through the Judiciary Committee in September. However, no subsequent action has been taken to bring the bill to the floor of the Senate for a vote, as there may not currently be sufficient support for the bill to pass (or survive a possible filibuster attempt).

The Senate bill is substantially more detailed than the House amendment to the appropriations bill. It would generally prevent federal entities from demanding a “covered journalist” comply with a subpoena or court order seeking to force the disclosure of protected information. The government still would retain the ability to compel disclosure when it is necessary to prevent certain consequences (death, kidnapping, substantial bodily harm, terrorist activities, or “significant and articulable harm” to national security). To invoke the protection of the proposed law, a journalist must have promised or agreed to keep the information in question (or the source of such information) confidential, and the information must have been obtained for the purpose of “engaging in journalism.” In the wake of revelations that the Justice Department secretly obtained communications records of Associated Press and Fox News reporters, the bill would also generally prevent the federal government from seeking similar information from journalists’ service providers.

The question of who is eligible to invoke the reporter’s privilege has been a significant issue during previous attempts to draft a federal shield law. Reporters have been concerned that any attempt to define a “journalist” could potentially lead to future government interference, including licensing of journalists. While the Society of Professional Journalists and Newspaper Association of America have acknowledged this issue, the organizations consider the Senate bill’s current definition of a “covered journalist” broad enough to merit support. Those eligible to invoke the privilege under the Senate bill would include college journalists, freelancers, bloggers, anyone working for a “news website,” and most anyone else who is gathering information with the intent to disseminate it in a public manner (as well as traditionally-employed print and broadcast reporters). It would, however, exclude certain groups like Wikileaks, whose principle function is merely to publish primary source documents that were disclosed without authorization. Importantly, the bill also would grant judges broad discretion to extend the reporter’s privilege to any party when doing so is “in the interest of justice,” helping ensure the law would be flexible enough to cover new and emerging media practices.

The impact the proposed law would have on cases like that of Risen is a point of considerable debate. This is particularly true with respect to the national security exception in the bill, which would allow the government’s interests to trump the reporter’s privilege in matters with national security implications. The language of the bill indicates that the government may only use the exception if the information being sought is intended to prevent a future act of terrorism or future harm to national security. Under this standard, a court could find that the identity of a source of years-old leaked information is not needed by the government to prevent such future harm. However, SPJ president Sonny Albarado has said he believes courts are so sensitive to the federal government’s national security interests that even the language of the Senate bill would not have been sufficient to protect Risen from being compelled to divulge sources. Despite these concerns, a host of professional journalism organizations, including Albarado’s SPJ, have backed the bill, believing its protections are a substantial upgrade over the current federal court climate faced by reporters.

While Sen. Chuck Schumer (D-N.Y.) stated in March that he believes it is “very likely” a shield bill will pass the Senate this year, the lack of recent movement has some observers skeptical. On June 11, 75 media companies and journalism organizations sent an open letter to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.), urging both to schedule a floor vote on the bill as soon as possible. Professional organizations, such as SPJ and the NAA, have called for members and others to contact undecided senators to convey interest in the bill’s passage.

The attention surrounding the Risen case has brought a renewed focus to years-old calls for meaningful federal recognition of a reporter’s privilege. This is an issue that warrants the attention of all journalists.

Editor's note:  Brooks Pierce summer associate Patrick Southern played a primary role in drafting this post.

New Jersey Appellate Court Adopts Narrow View Of Shield Law

In a decision with important implications for bloggers and other so-called "new media" journalists seeking to invoke the protections of their state's reporter's privilege, a New Jersey appeals court recently held that New Jersey's shield statute did not protect a woman who operated a web site dedicated to revealing "criminal activity" within the pornography industry.

The appellate court's decision in Too Much Media, LLC v. Shellee Hale affirmed a trial court decision requiring Hale to reveal her sources for a series of web postings that the plaintiffs asserted were, among other things, defamatory.  Hale had sought a protective order, citing New Jersey's shield statute.

In a lengthy analysis, the court focused almost entirely on whether Hale could be considered a journalist under the statute.  The statute covers, in relevant part, any

person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public.

"News media" is defined as "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public."

As an initial matter, the court held that under the statute, Hale bore the burden of proving she was a journalist.  In making this holding, the court cited to a portion of the New Jersey shield statute relating to efforts by criminal defendants to obtain a reporter's sources.  The court decided, without analysis, that the same burden of proof should apply in civil cases.  It is open to question, however, whether the public interest that exists in the civil context is weighty enough to require someone to prove he or she is a "journalist."

With that burden established, the court held that Hale had failed to prove that she was "engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public."  The court said:

Defendant has produced no credentials or proof of affiliation with any recognized news agency, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest.

The standard of proof outlined by the court is troubling.  After all, nothing in the text of the statute appears to require that someone adhere "to any standard of professional responsibility," and yet the New Jersey court made it a de facto requirement for being a "journalist" under the shield statute.

According to media reports, Hale will ask the New Jersey Supreme Court to review the decision.

Federal Shield Law Stalled in Senate Judiciary Committee

Federal reporter’s shield legislation has met with opposition in the Senate Judiciary Committee.  The committee addressed S. 448, the Free Flow of Information Act of 2009, in a hearing on September 17 but, ultimately, failed to report the bill out of committee and onto the Senate floor.   The inability to move the bill to the floor for a vote by the full Senate is a disappointment to the media and surely to Sen. Patrick Leahy (D-VT), the chairman of the committee and co-sponsor of the bill.

S. 448, as amended, generally protects journalists from having to disclose source information in a federal proceeding unless a federal court has determined that:

(1) the party seeking to compel disclosure has exhausted all reasonable alternative sources,

(2) (A) in a criminal investigation or prosecution, (i) there are reasonable grounds to believe a crime has occurred, (ii) the information sought is “essential” to the investigation, prosecution or defense, and (iii) in an investigation of disclosure of classified information, the disclosure has caused or will cause “significant and articulable harm” to national security, or

(2)(B) in matters other than criminal investigations or prosecutions, the information sought is “essential to the resolution of the matter,” and

(3) nondisclosure would be contrary to the public interest, considering both the public interest in compelling disclosure and maintaining the free flow of information.

Before last week’s hearing, an amendment was offered in an effort to strengthen national security protections, and much of Thursday's debate focused on the proposed national security carve-out.   The protections from nondisclosure described above would not apply to information that would “materially assist in preventing or mitigating, or identifying the perpetrator of (1) an act of terrorism or (2) other significant and articulable harm to national security that would outweigh the public interest in gathering and disseminating the information or news at issue and maintaining the free flow of information.” In other words, the federal shield would not apply, and disclosure could be compelled, in such circumstances.

But, even with the added protections for national security, Sen. Diane Feinstein (D-CA) and others expressed reservations about how the bill would affect leaks of sensitive intelligence documents and other classified national security information. 

Rather than voting on the bill in committee, Sen. Jeff Sessions (R-AL), the ranking member, suggested “slowing down” and focusing on the “problems” with the bill.  Indeed, the hearing concluded without an up or down vote on the bill, which means that it remains in committee for now.

The federal shield legislation’s fate at this point is unclear.  But judging by the remarks of the Senate Judiciary Committee members, particularly Chairman Leahy and Sen. Charles Schumer (D-NY), the committee members will continue working to resolve their differences and working with the Justice Department to craft a compromise.  We’ll continue to update you on this important legislation.

Texas Governor Signs Shield Law

As we reported last week, both chambers of the Texas legislature unanimously passed a shield law giving journalists qualified protection from disclosure of their sources and other confidential and non-confidential unpublished information collected as part of their newsgathering activities.  On Thursday, Governor Perry signed the Texas Free Flow of Information Act, H.B. 670, making it law in Texas.  The shield statute became effective immediately, and its enactment makes Texas the 37th state to pass some form of protection for journalists from state-court subpoenas.

Free press and journalist advocacy groups praised the move.   The Executive Director of The Reporters Committee for Freedom of the Press stated that “[p]opular wisdom had it that Texas would never pass a shield law.  It is remarkable that the Texas media, local prosecutors, state legislators and statewide elected officials agreed upon an innovative bill that will ensure information flows to the people of Texas."

Governor Perry issued a statement in which he praised the legislature's efforts in crafting the shield law, describing it as "a complex issue that required thoughtful consideration."  Governor Perry continued, "I am pleased that lawmakers were able to strike a balance between protecting the rights of the people and the press."

One feature of the Texas statute that distinguishes it from some other shield laws is that it treats civil and criminal proceedings differently.  We discussed the privilege in civil proceedings in a prior post.  In criminal proceedings, a party seeking the identity of a confidential source may overcome the privilege if that party makes a clear and specific showing that:

  • the journalist observed the source committing a felony and the party seeking the source's identity has exhausted all other alternative sources for the information;
  • the source confessed a felony to the journalist and the party seeking the source's identity has exhausted all other alternative sources for the information;
  • there is probable cause to believe that the source committed a felony and the party seeking the source's identity has exhausted all other alternative sources for the information; or
  • disclosure of the course is reasonably necessary to stop or prevent reasonably certain death or bodily harm.

In criminal proceedings, when the party that issued the subpoena seeks unpublished information gathered by a journalist (as opposed to a confidentiail source of such information), in order to overcome the privilege the party must make a clear and specific showing that:

  1. all reasonable efforts have been exhausted to obtain the information from alternative sources; and
  2. the unpublished information, document, or item:
  • is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure; or
  • is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred.

When considering an order to compel the disclosure of such information, the court should consider the following factors:

  1. the subpoena is overbroad, unreasonable, or oppressive;
  2. reasonable and timely notice was given of the demand for the information, document, or item;
  3. in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist; and
  4. the subpoena or compulsory process is being used to obtain peripheral, nonessential, or speculative information.

Free Press Reporter's Refusal to Reveal Source on Fifth Amendment Grounds Upheld

We have covered in a number of prior posts the saga of a former federal prosecutor's efforts to compel Detroit Free Press reporter David Ashenfelter to disclose the identity of a confidential source.  This story has had a number of interesting twists and turns, and last week's development was no different -- after hearing testimony from Ashenfelter in camera federal district court judge Robert Cleland upheld Ashenfelter's invocation of the Fifth Amendment privilege against self-incrimination, which means that Ashenfelter will not have to reveal his source.

As we previously reported, Ashenfelter first objected on First Amendment grounds to the third-party subpoena he received from the former prosecutor, Richard Convertino.  However, given that the civil proceeding in which the subpoena was issued is a federal matter, Ashenfelter could not use Michigan's shield law in seeking to protect the identity of his confidential source.  He argued instead that the information sought was protected under the common-law First Amendment privilege, citing Branzburg v. Hayes.  However, the court rejected this claim, holding that the Sixth Circuit, which includes Michigan, does not recognize the common-law privilege.

Ashenfelter was therefore required to sit for a deposition conducted by the Convertino's attorney.  However, rather than answer the questions he was asked, Ashenfelter invoked the Fifth Amendment privilege against self-incrimination.  He argued he feared prosecution because Convertino's attorney had made statements suggesting that Ashenfelter himself was criminally culpable by withholding the identity of a person Convertino claimed had violated the federal Privacy Act by revealing information to Ashenfelter about Convertino.  The former prosecutor them moved to hold Ashenfelter in contempt for refusing to answer questions about his confidential source.

After some legal maneuvering, this issue finally culminated in another hearing before Judge Cleland.  Cleland heard testimony from Ashenfelter ex parte -- outside the presence of Convertino's attorney -- and concluded that Ashenfelter's invocation of the Fifth Amendment privilege was warranted.  As a result, Judge Cleland held that Ashenfelter did not have to testify, and his source's identity, at least for now, remains secret and Ashenfelter is relieved of his obligation to sit for a deposition.  Judge Cleland set a May 5 deadline for Convertino to request reconsideration of the ruling.

Judge Cleland's decision was hailed by free speech advocacy groups.  This publicity this saga has garnered has also helped build momentum for passage of a federal shield law, as we have covered previously.  If Congress passes a federal law akin to most state shield statutes, a reporter subpoenaed in a federal matter will not have to prevail on a Fifth Amendment (or First Amendment) argument in order to protect his or her source.

Free Press Reporter Allowed to Submit Confidential Affidavit


We have been closely following the saga of Detroit Free Press reporter David Ashenfelter and his efforts to avoid being forced to reveal the confidential source of information concerning former federal prosecutor, Richard Convertino.  The former prosecutor is attempting to sue the Justice Department under the federal Privacy Act.

Last week the judge in the case, District Court Judge Robert Cleland, allowed Ashenfelter to submit a confidential affidavit explaining the basis for Ashenfelter’s fears that he might face criminal prosecution if forced to reveal his source.

As we have previously reported, Ashenfelter, who is not a party to Convertino's lawsuit, had invoked the Fifth Amendment in a last-ditch effort to avoid testifying, but the judge ruled that the reporter would have to provide a fuller justification for his fears of criminal prosecution.  Ashenfelter then asked the court to allow him to testify in camera or to submit a confidential affidavit.

The judge’s decision allowing the confidential affidavit preserves -- at least temporarily -- the confidentiality of Ashenfelter’s source.


Reporter Ordered to Sit for Second Deposition

In a new twist in a matter we have been following closely, a federal judge in Michigan issued a written ruling today ordering Detroit Free Press reporter David Ashenfelter to sit for a second deposition.  The judge released his decision just over two weeks after conducting a hearing on a motion to hold Ashenfelter in contempt for refusing to testify at his deposition in a civil lawsuit about a confidential government source who divulged information to him about the plaintiff.

As we first reported in December, this case is particularly interesting because Ashenfelter invoked the Fifth Amendment privilege against self-incrimination in an effort to maintain his source's confidentiality.  Traditionally, reporters rely upon state shield statutes or the First Amendment to protect their sources.  However, in this case no shield law was available to Ashenfelter because the matter is pending in federal court (a problem that will be remedied if Congress passes the federal Free Flow of Information Act this year), and the judge had previously rejected Ashenfelter's invocation of a First Amendment privilege against being compelled to disclose the identity of a confidential source.

The basis of Ashenfelter invocation of the Fifth Amendment -- and his response to the plaintiff's motion to hold him in contempt for refusing to answer questions under oath about his source -- was his fear that he could face criminal prosecution related to his source's actions.  The plaintiff had argued that the source violated the federal Privacy Act by disclosing information about the plaintiff to Ashenfelter and that Ashenfelter was aiding that crime by refusing to name the source.

After hearing the parties' arguments earlier this month -- including hearing from Justice Department officials who demurred as to whether Ashenfelter might face criminal prosecution -- the presiding judge ruled that he needs further testimony before he can resolve Ashenfelter's Fifth Amendment claim.

In his written decision, the judge explained that Ashenfelter should clarify the basis of his fears of criminal prosecution -- under oath.  According to the judge, when a question asked does not patently seek information that would tend to incriminate a witness (such as a question whether the witness committed a crime), then

the witness must present sufficient evidence such that the "court can, by the use of reasonable inference or judicial imagination, conceive a sound basis for a reasonable fear of prosecution."  Above all, it is the witness's claim of the Fifth Amendment which controls, and therefore it is the witness who "must supply personal statements under oath or provide evidence with respect to each question propounded to him to indicate the nature of the criminal charge which provides the basis for his fear of prosecution."

The court concluded that Ashenfelter had not carried his burden under this standard because he had refused to provide any testimony at all that would substantiate the basis of his claim of privilege.  In fact, in a footnote the Court stated that the transcript of Ashenfelter's deposition contains "many questionable invocations of the Fifth Amendment," as Ashenfelter had invoked the privilege in response to all but four questions he was asked.  Nor had Ashenfelter provided any other evidence concerning the nature of the criminal charge he feared.

As a result, the court could not "either validate or reject his asserted fear of prosecution" on the record as it currently stands.  The judge therefore ruled that Ashenfelter must re-appear for a deposition or give a personal statement under oath with respect to each question asked to indicate the nature of the criminal charge he fears.  The judge also ordered that the deposition take place in the federal courthouse "at a time that the undersigned judge is readily available to review and decide disputed objections."  The court also noted that in lieu of a second deposition, the parties could negotiate a solution, such as a detailed affidavit or an ex parte in camera review of Ashenfelter basis for asserting the Fifth Amendment privilege against self-incrimination.

We will continue to monitor the progress of this matter.

Contempt Hearing Held in Response to Reporter's Invocation of Fifth Amendment

As we reported in December, reporter David Ashenfelter of the Detroit Free Press refused to answer questions about a confidential source during his deposition in a civil lawsuit.  The move was noteworthy because Ashenfelter, who was not a party in the lawsuit, invoked the Fifth Amendment privilege against self-incrimination in refusing to give testimony.  His earlier attempt to protect his source under the First Amendment had been rejected by the federal judge presiding over the case.

The grounds for Ashenfelter's invocation of the Fifth Amendment privilege was his fear that he could be prosecuted criminally if his source were revealed.  The plaintiff in the lawsuit, who had sued the Justice Department under the federal Privacy Act, contended an unnamed Justice Department official committed a crime when he disclosed information about the plaintiff to Ashenfelter and that Ashenfelter was aiding that crime by refusing to identify the source.  The plaintiff does not contend the article Ashenfelter wrote about him was inaccurate, only that the government should not have shared information about him.

At the time, the plaintiff's attorney indicated he was considering asking the court to hold Ashenfelter in contempt for refusing to testify.  He in fact did so, and the court held a hearing Wednesday on that motion.  The plaintiff's attorney asked that Ashenfelter be fined up to $5,000 per day and that the Free Press be prohibited from reimbursing Ashenfelter for his payment of the fines.

In recent years, a number of reporters have been held in contempt for refusing to comply with subpoenas, with some incurring substantial fines and others spending time in jail.  Highly publicized cases involving contempt sanctions against reporters include the Valerie Plame investigation, the Wen Ho Lee lawsuit, and the Hatfill lawsuit

In the Hatfill case, USA Today reporter Toni Locy (and others) were subpoenaed in connection with a lawsuit Steven Hatfill -- like the plaintiff in the Ashenfelter matter -- brought under the Privacy Act against government agencies and officials for identifying him to journalists as a "person of interest" in the anthrax investigation.  Locy was found in contempt for refusing to reveal her source, but the case settled while that ruling was under appeal.

At the hearing on Wednesday, the presiding judge heard argument from Ashenfelter's attorney and the plaintiff's attorney.  He also requested that Justice Department officials appear and comment on the likelihood that Ashenfelter would be prosecuted for a crime.  When asked, these officials told the judge they could not say one way or the other whether Ashenfelter would face prosecution if he testified and revealed his source.

The judge did not rule on the contempt motion at the close of the hearing but rather will issue a written ruling in the coming days.  We will monitor closely the outcome in this matter.

Reporter Invokes Fifth Amendment Privilege to Protect Confidential Source

A reporter for the Detroit Free Press took an unusual approach last week in an effort to protect the identity of a confidential source -- he invoked the Fifth Amendment privilege against self-incrimination.

This dispute arose in the context of a civil lawsuit brought by former federal prosecutor Richard Convertino in federal court in the District of Columbia.  Convertino led the prosecution of the so-called "Detroit Sleeper Cell" defendants shortly after September 11, 2001; however, the Justice Department subsequently removed Convertino from his post and asked that the convictions he obtained in that matter be dismissed.  In the complaint he filed in the pending civil action, Convertino -- who was himself acquitted of charges that he conspired to conceal exculpatory evidence and lied to a federal judge in connection with the prosecution -- contends that the Department of Justice disclosed information about him to the news media in violation of the federal Privacy Act.

In connection with the civil lawsuit, Convertino sought to depose Detroit Free Press reporter David Ashenfelter.  In particular, he sought from Ashenfelter the identity of a confidential source who told the newspaper that Convertino was being investigated for misconduct in connection with a terrorism prosecution.  Information from that source appeared in a January 2004 article that Ashenfelter authored.  Ashenfelter and the Detroit Free Press fought the subpoena in federal court in Michigan, moving to quash the subpoena and opposing Convertino's motion to compel Ashenfelter to comply with the subpoena.  In these papers Ashenfelter relied on traditional First Amendment arguments, which we have discussed in a prior post.  The district court rejected these arguments, and ordered the deposition to move forward in this written decision, which was subsequently reaffirmed on the newspaper's request for reconsideration.

Having lost on his First Amendment arguments, Ashenfelter appeared for his deposition last week.  However, during the deposition he still refused to answer questions concerning his confidential source, invoking the Fifth Amendment's privilege against self-incrimination.  The basis of his invocation of the privilege was Convertino's allegation that Ashenfelter, in refusing to reveal his source, was aiding the crime Convertino contends the source committed when the original leak occurred in 2004.  The Detroit Free Press issued a statement after the deposition adjourned, stating that "the First Amendment ought to be enough to protect journalists" and citing the matter as an example of why Congress should enact a federal shield law to protect reporters from being compelled to identify their sources in federal proceedings.  Convertino's attorney stated that he may ask the court to hold Ashenfelter in contempt for refusing to answer questions about his source.

Does the Constitution (Still) Protect the Identity of a Confidential Source?

A reporter’s or newsroom's best bet to quash an otherwise valid subpoena to appear in a state proceeding is a state shield statute (such as North Carolina).  If, however, the subpoena was issued at the federal law, such as from a United States Attorney or a fed era grand jury, or if you are in a state that lacks a shield statute (such as Texas), then your only choice is to rely on the muddled outcome of a thirty-six-year-old United Supreme Court precedent.  Despite its age, the value of this case to reporters remains uncertain.

In Branzburg v. Hayes, the Court held 5-4 that reporters served with a grand jury subpoena in a criminal matter do not have a First Amendment privilege against testifying.

Branzburg actually decided three different cases, each of which involved a similar set of facts.  In one of the cases, a reporter in Kentucky had published an investigative piece on the local drug trade in which he had personally observed people producing and using illegal drugs.  The other two cases involved reporters who had been covering the activities of the Black Panther Party.  In all three cases, local law enforcement officials who were pursuing criminal investigations sought to compel the reporters to reveal their confidential sources to a grand jury.

Justice Byron White, writing for the majority, accepted the reporters’ argument that if journalists are regularly forced to disclose the identity of their confidential sources, those sources will soon dry up and the reporters will be unable to do their job.  The question, Justice White said, is whether this potential burden on the rights of the press outweighs the legitimate needs of law enforcement officials to investigate and prosecute crimes. In the end, White said:

[W]e 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.

In the end, White said, reporters remain regular citizens and must comply with a legitimate subpoena just as any other citizen.

Justice Powell wrote a concurring opinion that reporters have used in both state and federal courts to argue that the Constitution in fact gives qualified protection, even though Justice White perhaps did not intend recognize such protection.  Justice Powell made clear in his opinion that despite the majority holding, law enforcement officials do not have a carte blanche “to annex the news media as an investigative arm of government.”  The critical passage of his opinion reads as follows:

If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy.  Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.  The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.  The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Branzburg is often described as a “4-1-4” case, meaning that there were four votes on either side of the issue, with one vote straddled both sides.  Justice Powell’s concurrence is the “1” here, and it is his call for a careful balancing by courts that would open the door in later years to some courts finding a qualified privilege in Branzburg.

The form of that privilege—adopted by many state legislatures in shield laws—was outlined in Justice Stewart’s dissent.  He wrote that, contrary to the majority opinion, the First Amendment demanded greater scrutiny of government attempts to compel reporters’ testimony.  Justice Stewart outlined a three-part analysis:

Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry.  They must demonstrate that it is reasonable to think the witness in question has that information.  And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties.

In one form or another, this three-part showing forms the basis of many shield statutes that provide a qualified privilege to reporters, thereby giving them some protection from compelled disclosure of confidential (and in some cases non-confidential) sources and source material.  In addition, it is the foundation of the proposed federal shield statute that is making its way, s-l-o-w-l-y, through Congress.

In recent years, several federal courts have refused to find a federal constitutional privilege in Branzburg, which calls into question just how much protection that case offers.  In two high-profile cases in the District of Columbia, federal district court judges ordered reporters to disclose confidential sources relating to the Valerie Plame leak investigation and a civil lawsuit brought by Wen Ho Lee.  These decisions were upheld on appeal.  In addition, a federal district court in San Francisco ordered reporters to disclose their source in connection with the BALCO investigation.  The Reporters Committee has cataloged recent federal subpoenas that gave rise to court challenges.

The lesson of these cases is that a reporter cannot count on protection--even qualified protection--from a federal subpoena that seeks the identity of a confidential source or other source materials.  This makes the passage of a federal shield law all the more critical.