Chapter Eight

Objectives• To define contempt of court• To define reporter’s privilege• To define shield laws

Intertwined Legal Issues

Vs

Reporter’s rights to keep sources and unpublished materials confidential

Court’s right to require disclosure of relevant information

Contempt of court• Judge should be able to control courtroom and

punish those who interfere with orderly process• Two kinds:– Direct contempt: disobeying judge’s order

or misconduct in courtroom– Indirect contempt: disrespectful out

of courtroom (like publishing somethingbad about judge or justice system)

• Criminal vs. civil contempt:criminal = punishment;civil = coercion (sit in jailuntil agree to obey court order)

Indirect contempt: not much• Bridges v. California (1941): stripped judges of

wanton indirect contempt power– Bridges sent telegram threatening strike of

longshoremen if unfavorable court ruling not overturned; LA Times published several editorials critical of judges—both cited

– Court overturned both citationsand said that no contempt forpublic statements unlesspublication created CPD toadministration of justice

• Direct contempt: moreproblematic

What is journalist’s privilege?• Evidentiary privilege: respects

confidentiality of relationship by letting those with privilege refuse to testify– Common: physician/patient, attorney/client,

priest/penitent

• Reporters’ rights to protect confidential sources: limited right– Why? To keep sources “live” and willing to

talk in sensitive situations– Recognized in many states

• Common law and statutes (“shield laws”)

Three levels...• 1. Withholding names/IDs of confidential

sources––source requested and reporter promised confidentiality

• 2. Withholding materials––tapes, notes, etc.– Not confidential, but not made public

• 3. When journalist is eyewitness to event– Least strong privilege

Privilege in criminal cases• Criminal defendant has big 6A right to

fair trial; thus rights need to be carefully balanced

• Sometimes prosecution rather than defense seeks information, arguing that society has compelling interestin deterring and punishingcrime

Group 1: U.S. Supreme Court Justices

• What has been the highest court’s stand on shield laws? According to the high court, is the First Amendment a shield?

A First Amendment right?• Before 1972: no special privilege between

journalists and sources; few shield laws• Then Branzburg: Three cases on appeal from three

reporters who had claimed privilege– Paul Branzburg, reporter for Louisville Courier–Journal,

watched marijuana being made into hash with promise of confidentiality

– Paul Pappas, Massachusetts TV reporter, and Earl Caldwell, NYT reporter in SF, had relationships with Black Panthers, a militant group

– All three had been called by grand juries and refused to answer questions

Branzburg v. Hayes (1972)• Weird case with 4-1-4 vote

(Powell narrowly concurred)– Why? Majority opinion is less

important than dissent is!

• Majority opinion held no 1A constitutional privilege for reporters

• But dissent by Justice Potter Stewart set up structure for privilege

Stewart’s dissent: major test• In subpoenaing journalists,

government has burden of proof, and it must demonstrate:– 1. Journalist has information critical

to decision in case––no “fishing expeditions”

– 2. No reasonable alternative sources to obtain information––no sources less destructive of 1A rights

– 3. Compelling and overriding public or personal interest in disclosure of information––essential to case to have that particular information

1A

Aftermath of Branzburg

• Courts construe majority opinion narrowly and often apply Stewart’s test

• Many state shield laws adapt test

• Effect: majority opinion virtually gone and dissent is what matters!

Group 2: Journalists

• What protections do journalists want? How far do you think they should go to protect those rights? What tips would you give reporters on promising confidentiality?

Group 3: California Supreme Court Justices

• What has been the attitude of the judges in general regarding shield laws? What have been some of the state court rulings justices regarding protection for journalists?

Shield laws

• 30 states have (CA)

• Vary widely from state to state; many adopt Stewart’s test in Branzburg—some stronger than others

• CA law part of CA constitution

CA shield law• Provides legal protections to journalists seeking to

keep confidentiality of unnamed source or unpublished info obtained during newsgathering

• Protects “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” and a “radio or television news reporter or other person connected with or employed by a radio or television station” – Also likely applies to stringers, freelancers, and perhaps

authors

CA shield law• Info protected– Source of any information, even

without assurance/ expectation of confidentiality

– Unpublished information – Specific information obtained

during newsgathering but not disclosed to public

– “All notes, outlines, photographs, tapes or other data of whatever sort”

– Newsgatherer’s eyewitness observations in public place

CA shield law• Applies even if published info based upon or

related to unpublished info • Protects only info obtained during newsgathering• Only protects journalist from being adjudged in

contempt by judicial, legislative or administrative body, or any other body with power to issue subpoenas, for failure to comply with subpoena– Does not protect journalist from other legal sanctions– Generally does not apply when journalist or news

organization is party to lawsuit and other sanctions are available

Exceptions to shield laws• Three major exceptions:– 1. Use of balancing test that party seeking

disclosure must meet to overcome the privilege; most states use Stewart’s three–part test

– 2. Exception for entire classes of court cases, libel most typically (fear of fabricated sources in defense)

– 3. Eyewitness testimony––if journalists have seen an event, compelled to testify

Group 4: News Sources

• What protections do news sources want? What decisions have been ruled by the courts for those who have sued?

Lawsuits by sources• Cohen v. Cowles Media (1991): editors of Star Tribune

and Pioneer Press ignored reporters’ promises of confidentiality given to Dan Cohen and published name in connection with info about IR lt. gov. candidate– Cohen lost job, sued; said reporters’

promise an enforceable contract– MN Supreme Court said enforcement

of contract law would violate 1A

• Court overturned on promissoryestoppel: promise must be enforcedwhen someone has relied upon it—law of general application

Group 5: The Public of California

• What did California voters have to say about shield laws?

Article 1, Section 2(b) of the State Constitution

• Gives journalists a right to refuse to reveal the identities of their sources as well as unpublished information, photographs and film or video outtakes.

• Forbids judges to cite journalists for contempt of court if they refuse to reveal this sourt of confidential information.

Group 6: The Congress

• What efforts and successes has the U.S. Congress had in the area of shield laws? What success has it had in limiting newsroom searches?

Newsroom searches• Zurcher v. Stanford Daily (1978): Court

said newsroom searches did not violate 1A– Daily published articles/photographs of

demonstration where several police officers were assaulted—DA gotwarrant, searched formore info

– Huge rise in newsroomsearches!

Result: Privacy Protection Act of 1980, overruled Zurcher• Outlawed most newsroom searches• Officials cannot conduct searches and seizures involving

“documentary materials”– Search OK only when probable cause to believe that individual

involved in crime, to prevent imminent death, reason to believe that subpoenawould mean destruction of materials,or materials not produced as resultof court order overturned on appeal

• Also controls searches for “work products” (unpublished stuff)

• Subpoena for search, not warrant (appealable, challengeable)

Conclusion: Newsgatherer’s privilege• 1A privilege is seldom granted when journalists

are subpoenaed to testify before grand juries.• There is no federal shield law; however, several

courts have recognized a privilege for reporters under federal rules of procedure adopted by Congress for federal courts.

• 1A does not protect journalists who reveal names of sources promised confidentiality.