Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

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giving journalists qualified protection from disclosure of their sources and other confidential and non-confidential unpublished information collected as part of their newsgathering activities.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.

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Texas is on the cusp of parting company with the minority of jurisdictions that offer no statutory protection to journalists who receive subpoenas.  As we have discussed in a previous post, most states have enacted laws that create a least a qualified privilege for journalists from being compelled to disclose source information.  Some "shield" statutes, as they are often called, protect both confidential and non-confidential information, whereas others protect only confidential information or confidential sources.  Some give absolute protection from disclosure, others qualified protection.  The Reporters Committee for Freedom of the Press has an excellent database to compare the text of shield statutes in different states.

The Texas Free Flow of Information Act, HB 670, passed both chambers of the Texas legislature unanimously.  On May 4, it went to Governor Rick Perry's desk for his signature, which must be given within 10 days.  According to the Associated Press, Governor Perry "has not taken a firm position on the latest version of the bill," and it remains to be seen whether he will sign the bill into law, veto it, or allow it to become law without his signature.

HB 670 follows the structure of many shield statutes.  The text of the bill can be viewed here.  It protects both non-confidential and confidential information (including the source of such information) a person obtains while acting as a "journalist," which is defined as:

a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider.

Both "news medium" and "communication service provider" are defined broadly, and journalist is defined specifically to include editors and academics.  The shield bill protects only "unpublished" information.

In civil proceedings, the privilege can be overcome if the party seeking disclosure establishes, with "a clear and specific showing" that:

1. all reasonable efforts have been exhausted to obtain the information from alternative sources;
2. the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
3. reasonable and timely notice was given of the demand for the information, document, or item;
4. 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;
5. the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
6. the 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.

We discuss the privilege in criminal proceedings here.

We will watch closely to see whether HB 670 becomes law in Texas.  If it does, it will reduce the number of states lacking any form of statutory protection for subpoenaed reporters to 13.

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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.

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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.

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The U.S. Supreme Court case of Branzburg v. Hayes offers reporters limited constitutional protection from subpoenas compelling the disclosure of confidential sources or other source material.  The limitations of Branzburg and the lack of a federal shield law to complement state statutes first came into public consciousness in 2004 with the well-publicized Valerie Plame case. The effort to compel testimony from various Washington reporters about their contacts with White House officials was just one in what some perceived as a marked increase in the number of subpoenas served on journalists.

In response, a federal shield law—called the Free Flow of Information Act— was introduced in Congress in 2005. That act, like many state shield statutes, provides a qualified privilege for reporters that can only be overcome if the federal entity seeking disclosure can show that (1) there is no other reasonable way to get the sought-after information; (2) the information is “essential” to the case; (3) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information; and (4) that:

(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively; or
(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed:
(i) a trade secret of significant value in violation of a State or Federal law;
(ii) individually identifiable health information . . . in violation of Federal law; or
(iii) nonpublic personal information . . . of any consumer in violation of Federal law.

The act also requires that the compelled disclosure be narrowly tailored and as limited as possible.

The Free Flow of Information Act passed the House in October 2007 but a slightly different version of has been stalled in the Senate ever since. Despite overwhelming support in the House and the Senate Judiciary Committee, it is unclear when, if ever, the Senate will move forward on the bill. It should also be noted that since the increase in federal subpoenas in 2003 and 2004, the number issued in 2005 and 2006 has decreased significantly. In 2006, for example, only three federal subpoenas were issued to reporters, as compared to nineteen in 2004.
 

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