Understanding reporter's privilege


A student's guide to the protections afforded by existing, potential shield laws





A student photojournalist, compiling pictures for a class assignment that he hopes to publish, captures the scene of a fatal shooting at a dice game.

A team of college students enrolled in an Investigative Reporting course re-interviews the witnesses whose testimony helped convict a Chicago man of murder, and obtains sworn statements that cast doubt on the validity of the conviction.

Are these students “reporters,” even if they were working for course credit instead of pay, and had no assurance their work would ever be commercially distributed?

And if so, should the reporter’s privilege allow them to refuse to disclose their unpublished newsgathering materials even if the materials might help solve a crime?

Cases involving student journalists present some of the most challenging privilege issues that judges and legislators are facing today. The answers are not always obvious. Deciding what material is privileged means balancing two competing priorities: (1) to protect the ability of journalists to effectively and safely gather news, and (2) to make sure the right people (and only the right people) are caught and punished for crimes.

In this article, we’ll look at how reporter shield laws work, and which types of laws protect students and which don’t. We’ll focus on how recently enacted or revised state laws — and several being debated in Congress may (or may not) benefit students. And we’ll look at some recent court cases that test the limits of what information students can withhold when faced with a demand for their unpublished work.

Shield law fundamentals

Every state except Wyoming has some type of reporter’s privilege. Some are created by state legislatures and can be found in the statute books. Others are “common-law” privileges created by state courts.1

The core purpose of the reporter’s privilege is to protect the integrity of the newsgathering process — that is, to make sure that journalists can effectively keep the secrets that enable them to do their most important work. Proponents of a broad reporter shield argue that, if journalists can be compelled to disclose confidences, then many sources will stop sharing sensitive information, and valuable stories will be lost.

In a 1972 U.S. Supreme Court case concerning the reporter’s privilege, Justice William O. Douglas wrote: “A reporter is no better than his source of information. Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression. If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended.”2

A shield or privilege law comes into play when a journalist or news organization is faced with a demand to turn over unpublished material. The demand may come from police, prosecutors or defense attorneys working on a criminal matter, or it may come from the lawyer for a party in a civil case.

Normally, the demand comes in the form of a subpoena — a directive issued by a judge or a lawyer to give testimony or to produce evidence. For instance, in 2008, two college student newspapers in California were faced with subpoenas in which the parties in criminal cases demanded to see unpublished materials.3

An Orange County, Calif., prosecutor subpoenaed journalists at Saddleback College’s The Lariat seeking unaired video, notes and other documents relating to an assault on a campus security officer that was filmed by a student videographer. A public defender sought access to unpublished photos of an anti-war demonstration from the University of California-Santa Barbara Daily Nexus, believing that the materials might help her client, who was arrested at the protest.

A journalist who wishes to assert the reporters privilege normally will, through legal counsel, move to dismiss – or ‘quash’ – the subpoena.4 A judge must then decide whether the privilege applies.

In the case of the Daily Nexus and The Lariat, both papers obtained volunteer legal counsel through the Student Press Law Center and were able to negotiate for the withdrawal of the subpoenas without going to court to test the extent of their protection under California’s shield law.

Who and what is privileged?

When looking at a shield law, the first question to ask is: Who is a reporter entitled to claim privilege?

A few state laws explicitly require that a person be employed for substantial compensation by a recognized news organization to claim the benefit of shield protection. The Florida statute is an example of a privilege that is based on the journalist’s employment status. It covers only a “professional” journalist who is ‘working as a salaried employee of, or independent contractor for’ a media organization.5

More commonly, a statute will simply provide that a person who is engaged in gathering or distributing news for a media organization is entitled to claim reporter’s privilege. Georgia’s is an example of a shield law that covers people based on their journalistic function rather than how they are employed. It covers any “person, company, or other entity engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast(.)”6

In those states, it is up to the courts to determine whether a student fits within the intended scope of the law’s coverage.

Many shield laws are decades old, predating the Internet and the development of nontraditional newsgathering entities. Still, courts have been relatively generous in extending the protection of shield laws even to people who don’t seem to fall within the laws’ literal definition of a “reporter.”

For example, even though the District of Columbia’s reporter privilege code covers “any person who is or has been employed by the news media in a news gathering or news disseminating capacity”7 (emphasis added), at least one court has said a freelancer or author working without a guarantee of publication can still take advantage of the privilege.8

Assuming that the statute does apply, the next question to ask is: What material is considered “privileged?” All privilege laws will at least protect the identity of, and information obtained from, a confidential source who was promised anonymity. Many shield laws – either by their wording, or in the way that judges interpret them – go quite a bit further.

Oregon’s law illustrates the broad approach to confidentiality. It allows journalists to withhold not just the identity of confidential informants but also “all notes, outtakes, photographs, tapes or other data” that has not been publicly distributed.9 Importantly, shield laws apply not just to the unpublished materials themselves, but also to the reporter’s own testimony. It would be pointless to have a reporter’s privilege allowing a journalist to withhold her unaired video footage if attorneys could simply subpoena the journalist and force her to testify about what is in the video.

Finally, a journalist seeking to invoke reporter’s privilege must take note of whether the privilege is an absolute one or a qualified one.

If the privilege is absolute, then the journalist’s information cannot be obtained under any circumstances. But most states provide only qualified protection. In those states, the privilege can be overcome if the party seeking disclosure can make a compelling showing that the information is necessary and is unavailable elsewhere. And some states have a “two-tier” law in which the most sensitive information – such as the name of a confidential informant – is absolutely privileged, while other newsgathering information receives only qualified protection.

States expand privilege, Congress wavers

Since 2008, Maine, Hawaii and Utah have adopted new reporter shields that protect those performing journalistic functions – meaning that there is a strong argument that they cover even unpaid students.

For instance, Utah’s reporter shield – enacted in January 2008 by the Utah Supreme Court as part of that state’s code of evidence – extends coverage to any “publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public” as well as the news organization “with whom that person is connected.”10

Texas also added a shield law in 2009, but its definition of a “journalist” is limited to a person who gathers news “for a substantial portion of the person’s livelihood or for substantial financial gain.”11 Consequently, an unpaid student journalist would have no claim of privilege, and even a student doing occasional freelance work for a token payment might have difficulty qualifying.

The newest shield statute, signed into law April 15, 2010, in Kansas, covers those “employed” by news organizations, but it makes no reference to payment and its proponents believe the law was intended to cover student journalists.12 A new Maryland law expands the scope of that state’s shield law to cover college journalists; though the law expressly applies only to those working under school supervision or in or college-affiliated media, proponents believe the existing shield law already covered students working for pay at independent publications.13

While 38 states now have shield statutes, the status of journalists in the federal courts has long been uncertain. This is why journalists sometimes find themselves going to federal prison for defying subpoenas in federal lawsuits or criminal prosecutions.14

In its fragmented 1972 ruling in Branzburg v. Hayes, the Supreme Court appeared to recognize that the First Amendment can provide some limited degree of privilege, though not a blanket immunity against giving testimony needed in a criminal proceeding.15 (In that case and a companion case, two professional journalists – one who wrote about the inner workings of the drug trade in Kentucky and another who infiltrated the Black Panthers militant civil-rights group – were found to have no protection against testifying before grand juries in criminal matters.)

Lacking clear direction from the Supreme Court, the contours of a constitutional privilege – who and what it covers, and what is required to override the privilege – have been left to lower courts to determine.

Advocates have had difficulty getting a reporter shield law through Congress despite 15 years of sustained efforts. As of April 2010, two competing shield bills were pending in the House and Senate.

H.R. 985, the “Free Flow of Information Act of 2009,” would cover only a journalist who gathers and distributes news “for a substantial portion of the person’s livelihood or for substantial financial gain.” The Senate shield bill, S. 448, is more expansive. It protects anyone who engages in “the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information” to the public.16

S. 448 passed the Senate Judiciary Committee on Dec. 10, 2009, after senators reached a compromise with the White House and the Justice Department creating exceptions to the shield where sensitive terrorism-related information is involved.

While the difference between the two bills is of great consequence to students, the disagreement over the scope of coverage has focused on the role of occasional amateur bloggers, not students. “This definition is no definition at all. It’s so broad as to be meaningless,” said Sen. Dick Durbin, D-Ill., when the bill came before the Judiciary Committee.17 For better or worse, students’ status under the shield law may be joined at the hip with the fate of bloggers.

Students test limits of shields’ scope

Fortunately, student journalists rarely have to put the reporter’s privilege to the test. There are only a handful of known court rulings in which a student journalist attempted to resist a subpoena on the grounds of privilege.

In almost all of the known instances, judges have decided the issue on grounds other than the student’s status. As a result, there is almost no guidance from the courts as to when a student’s journalistic activity will be recognized as being substantial enough to qualify for the reporter’s privilege.18

Two recent high-profile cases are spotlighting students’ uncertain position under shield laws.

The first of these cases starts in April 2009. San Francisco State University photojournalist Alex Welsh was working on a class project documenting life in the Bayview-Hunters Point area, an African-American neighborhood that Welsh believed was under-covered by the mainstream media.

Welsh had sold other photos to professional media outlets. He had talked with several about the Bayview-Hunters Point project, but had reached no agreement.

Welsh was photographing a dice game when one of the players, 21-year-old Norris Bennett, was suddenly shot and killed.

Welsh notified the police, but declined to turn over his photos from the scene, asserting the reporter’s privilege. Police obtained a search warrant and, before the student could get a lawyer and challenge the warrant, raided his home and seized photos, a computer hard drive, and other materials.

The student went to court demanding that police turn over what they seized. His attorney cited California’s shield law, which applies to any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed(.)”19

In July 2009, San Francisco Superior Court Judge Tomar Mason ruled that, even though Welsh was not “employed” by a recognized news organization at the time he took the photographs, California’s shield law applied to him.20 The judge ordered all of the confiscated materials returned.

Welsh later willingly disclosed one of the murder-scene photos as part of a portfolio submitted to University of Missouri’s College Photographer of the Year awards. His entry won the gold medal in the documentary category for 2009.21 As it turned out, his photos did not capture any identifying information about the shooter.

The Welsh case has aroused strong reactions, because it involves a serious crime to which the journalist was an eyewitness. A police detective called the photographer a “coward” for refusing to come forward and volunteer his information.22

Nevertheless, the case was in some ways a classic illustration of the benefits of the reporter’s privilege. As demonstrated by his award-winning documentary portfolio, Welsh was frequenting a neighborhood where crime and violence are a daily reality. If not for the wall of separation between press and police, the student may never have been allowed to capture the candid scenes that he photographed, including the sudden and senseless end of Norris Bennett’s life.

The second recent high-profile case involves students enrolled in Prof. David Protess’ Investigative Reporting lab class at Northwestern University’s Medill School.

The students assigned to the Medill Innocence Project work in teams reexamining old criminal convictions about which doubts have been raised. When they reach a conclusion about whether the conviction was wrongful, they publish their findings on the Project’s Web site23 and in conjunction with professional journalists in the Chicago media.

Between 2003 and 2006, students in the Project scrutinized the case of Anthony McKinney, a Chicago-area man serving life in prison for a murder conviction in the 1978 shooting death of a security guard. McKinney had always denied involvement.

The students retraced the steps of criminal investigators, and gathered fresh statements from witnesses – published on the Project’s Web site24 – indicating McKinney was not involved and pointing the finger at an alternative suspect.

In 2008, attorneys with Northwestern’s legal clinic moved to reopen and retry the McKinney case based on the student journalists’ newly discovered information.

Prosecutors with the State’s Attorney’s Office responded by subpoenaing not only all of the students’ notes, interview tapes and other unpublished newsgathering materials, but also background materials about the Investigative Reporting course and the students’ performance in it.25 The prosecutors theorized that those course materials might show that the students were motivated to bias their investigation by promises of better grades if their findings cleared McKinney.

Northwestern fought the subpoena, raising the reporter’s privilege as a defense.

Illinois law extends the reporter’s privilege to “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis,” and it includes an electronic “news service” as a recognized “news medium.”26

State’s Attorney Anita Alvarez responded by questioning the students’ legitimacy as journalists, pointing to their irregular publishing schedule and lack of affiliation with a recognized media organization. Prosecutors suggested that the students crossed a line from journalist to investigator, and were not entitled to claim privilege under Illinois law.

In support of her position, Alvarez produced statements from two of the Medill students’ witnesses in which the witnesses wavered on what they told the reporters.27 One witness told prosecutors that a Medill student passed him $40 through a cab driver, which the witness admitted using to buy drugs. Another said that female reporters flirted with him, and he told them what they wanted to hear to keep the conversation going.

Multiple media organizations filed briefs supporting the students’ entitlement to protection under the shield law, including the SPLC, College Media Advisers, the Society of Professional Journalists, and the Association for Education in Journalism and Mass Communications.28

The issue was largely mooted, however, when lawyers for McKinney changed tactics.

In February 2010, they resubmitted their petition for a new trial without using the two witnesses who waffled on their statements to the journalists.29 The revised petition relies on two other witnesses, who have changed their stories since McKinney’s trial and now say they did not see McKinney commit the murder.

Although the Medill case may not result in significant new legal precedent affecting the typical student journalist, it has had an impact. Maryland state Del. Sandy Rosenberg said he proposed House Bill 257, amending Maryland’s shield law to include some college journalists, as a direct response to the uncertainty over the Medill journalists’ status.30

A shield may not stop all bullets

For student journalists at school-supervised publications, subpoenas from lawyers may not be the biggest confidentiality concern. Since shield laws typically block intrusions only by police or by courts, it’s questionable whether even the strongest reporter privilege could block a demand from school officials (or snooping by school personnel with access to newsroom computers).

There are no known court cases in which a student journalist has attempted to claim reporter’s privilege when faced with a demand for information from a school administrator or faculty adviser. However, aside from reporter’s privilege, there are other legal arguments against forced disclosure of confidential sources.

There is some risk that, if a journalist goes back on a promise of confidentiality, the journalist could be sued for breach of contract if the source is harmed by the disclosure. This happened to two Minnesota newspapers in the case of Cohen v. Cowles Media.31

In the Cohen case, a campaign aide leaked unflattering court documents about a candidate for governor to reporters at the St. Paul Pioneer Press Dispatch and the Minneapolis Star and Tribune, under a promise that his identity would be protected. The papers later decided that the source of the leak was newsworthy and, going back on their promise, identified the leaker, Dan Cohen.

When the story came to light, Cohen was fired from his job and sued the publishers of both papers. The U.S. Supreme Court decided that the First Amendment did not protect the newspapers against a suit for breach of promise.32

So keeping a promise of confidentiality is not just a matter of sound ethical behavior – it can also be a matter of self-preservation.

A student journalist who is confronted with a demand for confidential materials – especially the identity of sources who gave information under a promise of anonymity – should (politely and courteously) resist the demand. If pressure persists, the journalist should promptly obtain legal counsel from an attorney licensed in the appropriate state. The SPLC’s Attorney Referral Network often can be of help matching up students with volunteer lawyers.

As a final note of caution, students who deal with confidential informants should be wary of saving any identifying material in accessible places in an on-campus newsroom – including on school computers. It is not unheard-of for schools to use their access to school premises and computers to search for journalists’ newsgathering materials.33 Once information falls into the authorities’ hands, arguing for the protection of reporter’s privilege may be, as a practical reality, irrelevant.

By Frank LoMonte, SPLC executive director

Endnotes

1 The Reporters Committee for Freedom of the Press has compiled a state-by-state rundown of these laws at www.rcfp.org/privilege/.
2 Branzburg v. Hayes, 408 U.S. 665, 722 (1972) (Douglas, J., dissenting).
3 Student Press Law Center News Flash, “Two Calif. papers successfully challenge subpoenas for unpublished material,’ May 20, 2008, http://www.splc.org/newsflash.asp?id=1756.
4 See, e.g., FED. R. CIV. P. 45©(3)(A)(iii) (providing that a judge may be asked to quash a subpoena that ‘requires disclosure of privileged or other protected matter’).
5 Fla. Stat. Sec. 90.5015(1)(a).
6 O.C.G.A. Sec. 24-9-30.
7 D.C. CODE Sec. 16-4702.
8 Prentice v. McPhilemy, No. 98CA0004309, 27 MED. L. RPTR. 2377 (D.C. Super. Ct., May 5, 1999).
9 ORS 44.510(5).
10 Rule 509, UTAH R. EVID.
11 Tex. Civil Practice & Remedies Code, Sec. 22.021(2); Tex. Code Crim. Pro., Art. 38.11(2).
12 SPLC News Flash, ‘Proposed Kan. shield bill could include student journalists,’ March 25, 2010, http://www.splc.org/newsflash.asp?id=2054.
13 SPLC News Flash, ‘Md. shield law now includes protection for college student journalists,’ April 27, 2010, http://www.splc.org/newsflash.asp?id=2081.
14 See, e.g., Joe Mozingo, Imprisoned blogger is freed in deal with federal prosecutor, LOS ANGELES TIMES, April 4, 2007, at 3.
15 408 U.S. 665, 692 (1972).
16 See Charles Savage, Deal Reached in Senate on Bill Protecting Reporters’ Sources, THE NEW YORK TIMES, Oct. 31, 2009, at A1.
17 Jerry Zremsky, Journalism Shackled: Should the Federal Shield Law cover online reporters and bloggers, BUFFALO NEWs, March 21, 2010, at G1.
18 For a full discussion of cases in which students have raised the reporter’s privilege, see the Student Press Law Center’s LAW OF THE STUDENT PRESS (2008) at 297-98.
19 CALIF. EVID. CODE Sec. 1070(a).
20 Jaxon Van Derbeken, Student ruled a journalist, SAN FRANCISCO CHRONICLE, July 16, 2009, at A10.
21 Welsh’s award-winning entry can be viewed on the College Photographer of the Year site at http://www.cpoy.org/index.php?s=WinningImages&c=191.
22 Van Derbeken, supra note 16, at A10.
23 http://www.medillinnocenceproject.org/.
24 http://www.medillinnocenceproject.org/mckinney.
25 Jeff Long, Medill justice project finds itself targeted, CHICAGO TRIBUNE, Oct. 19. 2009, at A1; Monica Davey, Prosecutors Turn Tables on Student Journalists, THE NEW YORK TIMES, Oct. 25. 2009, at A14.
26 735 ILCS 5/8-902.
27 Emma Graves Fitzsimmons, Prosecutors Say Students Paid Witness to Aid Case, THE NEW YORK TIMES, Nov. 11, 2009, at A20.
28 http://www.splc.org/pdf/SPLC-MedillAmicusFiling.pdf.
29 http://www.medillinnocenceproject.org/mckinney#Updated3.
30 SPLC News Flash, ‘College journalists included in proposed amendment to Md. shield law,’ Feb. 3, 2010, http://www.splc.org/newsflash.asp?id=2023.
31 501 U.S. 663 (1991).
32 Id. at 670.
33 See, e.g., SPLC News Flash, ‘Student reporter who discovered university security breach punished but not expelled,’ Oct. 5, 2007, http://www.splc.org/newsflash.asp?id=1621 (describing Western Oregon University’s search of school computers seeking materials given to the student newspaper by a source).


reports, Spring 2010