Chapter Overview

Constitutional Protection of News Sources:

In recent years more and more reporters have been called to testify in legal proceedings. Often they are asked to reveal confidential information to aid police in criminal investigations, to assist in the defense of a criminal defendant, or to help a libel plaintiff establish negligence or actual malice. Failure to comply with a court order can result in a citation for contempt of court. The Supreme Court of the United States ruled in 1972 that reporters were like all other citizens; they did not enjoy a First Amendment privilege that permitted them to refuse to testify before a grand jury. Despite this high court ruling, the lower federal courts and state courts have fashioned a constitutional, common-law privilege that often protects a journalist who has been subpoenaed to testify at a legal hearing. The privilege is qualified. In many instances a court will not require a journalist to testify unless the person seeking the information held by the journalist can demonstrate that the reporter has information that is relevant to the hearing, that there is a compelling need for the disclosure of this information, and that there are no alternative sources for this information.

Courts tend to apply this three-part test differently in different types of legal proceedings. Journalists are most likely to escape being forced to testify in a civil suit, especially if the reporter is not a party to the suit in some way. Reporters are more likely to be forced to testify in a criminal case, but there are numerous examples of reporters being granted a qualified privilege to escape such testimony as well. Reporters called to testify before a grand jury, however, usually are required to honor the subpoena. More and more courts are seeking journalists' testimony regarding nonconfidential information, and the law is of substantially less protective value in these cases. A U.S. court of appeals has ruled that the records of toll telephone calls made by journalists may also be subpoenaed to further legitimate law enforcement proceedings.

Legislative and Executive Protection of News Sources:

State legislatures and the federal government have adopted statutes and rules that offer some protection to journalists who hold confidential information sought by government agents and other individuals. Thirty-one states have adopted so-called shield laws, which provide a qualified privilege for reporters to refuse to testify in legal proceedings. Although sometimes these statutes can be helpful, they are not without problems. There is a lack of consistency among the state shield laws. These laws have definitional problems that permit courts to construe them very narrowly if they choose to. The laws usually protect only what someone tells a reporter, not what a reporter personally sees or hears. Often courts see the statutes as legislative interference with judicial prerogatives and go out of their way to interpret the laws in the least useful manner.

The Department of Justice has adopted rules that govern when and how federal agents may subpoena journalists, records possessed by journalists, and journalists' telephone toll records. The rules require federal agents to strike a balance between the public's interest in the free flow of information and effective law enforcement. Federal prosecuting attorneys are instructed to attempt to obtain information from alternative sources or to negotiate with the journalist to get the material before seeking a subpoena. The attorney general must approve all subpoenas under guidelines outlined in these rules.

Congress passed the Privacy Protection Act of 1980 in response to a ruling by the U.S. Supreme Court that the First Amendment does not ban searches of newsrooms or reporters' homes. This act requires federal, state and local police agencies who seek a journalist's work products or other documentary materials to get a subpoena for these materials rather than seize them under the authority of a search warrant. The statute does provide exceptions to these rules. For example, premises may be searched and materials seized under a search warrant if police believe the reporter has committed a crime, if there is reason to believe someone will be harmed if the materials are not seized, or if police fear the materials might be destroyed if a subpoena is sought.

The Contempt Power:

The power of a judge to punish for contempt of court is a remnant of the power of English royalty. Today, courts have broad powers to punish persons who offend the court, interfere with legal proceedings, or disobey court orders. Contempt is used both to protect the rights of private persons who are litigating matters in the courts and to punish a wrong committed against the court itself.

Some limits have been placed on the contempt power. Legislatures often restrict the kinds of sentences judges may impose for contempt or require a jury trial before a contempt conviction. The Supreme Court has ruled that before criticism of a court may be punished by contempt, it must be shown that the criticism created a clear and present danger of the likelihood of interference with the administration of justice. In some jurisdictions appellate courts have ruled that persons must obey even unconstitutional contempt orders (the Dickinson rule).