Chapter 10 Protection of News Sources/Contempt Power

First, Sixth and Fifth Amendments
What happens when they conflict?
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

 

 

To not testify is a privilege (not a right) if not explicitly covered by the Fifth Amendment

 

 

These exceptions often protect confidential relationships
Husband-Wife
Doctor-Patient
Lawyer-Client
Clergy-Penitent

 

 

The receivers of information are bound by ethics not to disclose what they know to others without permission

 

 

Is the Journalist-Source relationship worthy of privilege?
Some sources won't talk without anonymity
Some sources could be at risk if identified
Some sources could refuse to talk later if exposed
Sometimes journalists can't get information without the ability to insure confidentiality
Protecting a source (keeping a promise) is an ethical obligation

 

 

Constitutional issues
Branzburg v. Hayes (1972)

Opened the door to the possibility of privilege

(in testimony settings other than grand juries)

note that in dissent a test was proposed that would later find favor:

 

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

 

 

A balancing test - balancing the public interest in law enforcement against the journalistic interest in protecting a source

 

 

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.

 

 

There is no privilege for nonconfidential information (information that hasn't been promised as confidential - reporter notes, videos etc. can fit here)

 

 

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)

 

 

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

 

 

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)

Don't promise confidentiality lightly
Qualify confidentiality if at all possible
tips

 

 

A key question - who is a journalist?
(who might qualify for privilege)
The Internet has complicated this question!
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!

 

 

 
Shield laws - some states have granted reporters differing levels of privilege (at best, a qualified privilege)
Does Minnesota have a shield law?
 
There is no federal shield law but the Department of Justice has guidelines
 

 

 

Minnesota Shield Law (Minnesota Free Flow of Information Act - 595.021 - .025)

 

 

see also SPLC state guides

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