Chapter 10 Protection of News Sources/Contempt Power
First, Sixth and Fifth Amendments | |
What happens when they conflict?
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First - free press | |
Sixth - right of the accused to have witnesses and to compel them to testify (subpeona power) | |
Fifth - opens the door to exceptions to the principle that all should testify | |
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To not testify is a privilege (not a
right) if not explicitly covered by the Fifth Amendment
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These exceptions often protect confidential relationships | |
Husband-Wife | |
Doctor-Patient | |
Lawyer-Client | |
Clergy-Penitent | |
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The receivers of information are bound by ethics not to disclose what they know to others without permission | |
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Is the Journalist-Source relationship worthy of privilege? | |
Some sources won't talk without anonymity
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Some sources could be at risk if identified
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Some sources could refuse to talk later
if exposed
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Sometimes journalists can't get information
without the ability to insure confidentiality
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Protecting a source (keeping a promise)
is an ethical obligation
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Constitutional issues | |
Branzburg v. Hayes (1972) | |
Opened the door to the possibility of privilege (in testimony settings other than grand juries) |
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note that in dissent a test was proposed that would later find favor:
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Privilege can be granted unless the government can show: | |
1. There is probable cause to believe that the reporter has information that is clearly relevant to a specific violation of the law | |
2. That the information can't be obtained by other means | |
3. That the state has a compelling and overriding interest in the information | |
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A balancing test - balancing the public interest in law enforcement against the journalistic interest in protecting a source | |
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Most states ask some variation of these questions for criminal cases | |
Privilege is most likely to be granted
in civil cases, less likely for criminal cases, and pretty much never
for grand jury cases.
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There is no privilege for nonconfidential information (information that hasn't been promised as confidential - reporter notes, videos etc. can fit here) | |
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The process: | |
A reporter publishes a story disclosing direct knowledge of a crime (and has promised confidentiality to the source) | |
The reporter is called to testify | |
What can the reporter do? | |
1. testify | |
2. file a motion to quash | |
3. negotiate over what information will be disclosed (may involve letting the judge know everything in chambers) | |
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If the motion/negotiation fail: | |
1. seek permission from the source to identify | |
2. face contempt charges (jail and/or fine) 6 months - trial | |
3. testify and face a possible civil suit from the source | |
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Reporters can be sued for breaking a confidentiality agreement (Cohen v. Cowles Media Co.) | |
promissory estoppel - designed to prevent injustice when some one has failed to keep a promise that someone else relied upon (when no contract has been executed) |
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Don't promise confidentiality lightly
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Qualify confidentiality if at all possible
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tips
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A key question - who is a journalist? | |
(who might qualify for privilege)
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The Internet has complicated this question!
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guidelines | |
1. someone who is engaged in investigative reporting | |
2. someone who is gathering news | |
3. someone who possesses the intent at the beginning of the newsgathering process to disseminate this news to the public | |
vague!
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Shield laws - some states have granted
reporters differing levels of privilege (at best, a qualified privilege)
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Does Minnesota have a shield law?
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There is no federal shield law but the
Department of Justice has guidelines
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Minnesota Shield Law (Minnesota Free Flow of Information Act - 595.021 - .025) | |
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see also SPLC state guides | |