Subpoenas and Searches
I. Reporter's Privilege
Prosecutors, etc:
Need for information
Same legal duty as any citizen
Reporters
Professional ethics
Sources will "dry up"
Professional privilege analogous to other common law privileges--A qualified privilege NOT to appear/testify unless:
*There are reasonable grounds to believe the reporter possesses information relevant to the crime the grand jury is investigating, and
*The information is unavailable from other sources, and,
*The need for the information is compelling
Cases:
Branzburg v. Hayes (Together with In Re Pappas and United States v. Caldwell) (1972) pp. 563-565 and 566-567.
The 1A does not guarantee such a privilege.
GO TO Gonzalez v. National Broadcasting Co., Inc. (2d. Cir. 1999) pp. 585ff.
[Background: a civil rights case was pending in Louisiana. The Gonzales family claimed to be victims of racial profiling—being pulled over and detained by a patrolman (Det. Pierce) who had a pattern of treating Hispanics in this way, frequently demanding payment.]
Months later NBC aired a story (“Dateline”) of abusive law enforcement practices in Louisiana. An NBC employee outfitted a car with video cameras and, driving normally, was stopped and harassed by the same patrolman accused in the Gonzales case.
NBC was subpoened by both Gonzales and Pierce for the “outtakes”—unedited film in existence but not used in the aired “Dateline” segment. NBC refused, alleging a qualified privilege for journalists.
Precedent cases in the 2d Cir. recognized a qualified privilege for both confidential and non-confidential journalistic sources.
A broad “concern for the potential harm to ‘paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.’” P. 586 (from Baker v. F & F Inv., 2d Cir. 1972)
In Gonzales, the court clarified the broader concern and maintained the concern applied to non-confidential as well as confidential information.
If the parties to any lawsuit were free to subpoena the press at will, it would likely become standard operating procedure for those litigating against an entity that had been the subject of press attention to sift through press files in search of information supporting their claims. The resulting wholesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compliance, and could otherwise impair its ability to perform its duties. . . . Incentives would also arise for press entities to clean out files containing potentially valuable information lest they incur substantial costs in the event of future subpoenas. And permitting litigants unrestricted, court-enforced access to journalistic resources would risk the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.” P. 587
But this is a qualified privilege and can be overcome by showing:
1. “the materials at issue are of likely relevance to a significant issue in the case, and”
2. [the materials] “are not reasonably obtainable from other available sources” p. 588
These are met here. The entirety of the film provides “unimpeachably objective evidence” of the patrolman’s conduct and NBC is the only source.
NBC is in contempt of court and must turn over the video.
Privilege under State Shield Statutes
Proposed Legislation: The Free Flow of Information Act (2007)
The Act gives a qualified privilege to reporters not to disclose unless--
*disclosure is necessary to prevent imminent and actual harm to national security
* disclosure is necessary to prevent imminent death or significant bodily harm
*disclosure is necessary to identify a person who had disclosed a trade secret of significant value
*disclosure is necessary to identify a person who has disclosed individually identifiable health information
*disclosure is necessary to identify a person who has disclosed nonpublic personal financial information
II. Contempt of Court
Direct v. Indirect
Criminal v. Civil
Cases:
In the Matter of Farber (NJ 1980)
In the news: "The Valerie Plame Leak"
Cooper, Kessler, Pincus, Russert, Novak, and Miller called to testify
Judith Miller spends 85 days in jail for contempt of court
III. Economic Harm
Equitable Action of Promissory Estoppel
*Promise
*Which induces action
*Only if the promise is enforced can injustice be avoided
Cases:
Cohen v. Cowles Media Company (1991) pp.429-433
Ruzicka v. Conde Nast Publications (8th Cir. 1991)
IV. Searches
Fourth Amendment
Case:
Zurcher v. Stanford Daily (1978)
Legislation:
The Privacy Protection Act of 1980 (handout)