A constitutional clash — with the media on the losing end.

1. Protecting sources
A constitutional clash — with
the media on the losing end

2. An old dilemma
• In 1848, John Nugent of the New York
Herald was held for refusing to identify a
source to the Senate

3. An old dilemma
• In 1848, John Nugent of the New York
Herald was held for refusing to identify a
source to the Senate
• The Herald gave Nugent a raise

4. An old dilemma
• In 1848, John Nugent of the New York
Herald was held for refusing to identify a
source to the Senate
• The Herald gave Nugent a raise
• After a month, the Senate gave up

5. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”

6. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”
• All must testify before the grand jury

7. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”
• All must testify before the grand jury
• The First Amendment belongs to everyone,
not just the press

8. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”
• All must testify before the grand jury
• The First Amendment belongs to everyone,
not just the press
• In practice, demands for sources generally
come from the government

9. Journalist’s or
reporter’s privilege
• As with free press/fair trial, a balancing test

10. Journalist’s or
reporter’s privilege
• As with free press/fair trial, a balancing test
• Courts decide on a case-by-case basis

11. Journalist’s or
reporter’s privilege
• As with free press/fair trial, a balancing test
• Courts decide on a case-by-case basis
• Guidelines have shifted over time

12. Branzburg v. Hayes (1972)
• Paul Branzburg’s
sources had
information about
drugs
• Two co-defendants
had done confidential
reporting on the Black
Panther Party

13. Byron “Whizzer” White
• Wrote majority
opinion
• Rejected reporter’s
privilege
• Wrote that “the lonely
pamphleteer” is as
important as
professional
journalists

14. Potter Stewart
• Wrote minority decision
• Criticized majority’s
“disturbing insensitivity”
to the role of a free
press
• Proposed a three-part
balancing test

15. The Stewart test
• Does the journalist possess “clearly relevant”
information?

16. The Stewart test
• Does the journalist possess “clearly relevant”
information?
• Is there no way of obtaining the information by
“less destructive” means?

17. The Stewart test
• Does the journalist possess “clearly relevant”
information?
• Is there no way of obtaining the information by
“less destructive” means?
• Is there a “compelling and overriding need” for
the information?

18. Powell’s “enigmatic
concurring opinion”
• Sides with majority’s view
that there is no reporter’s
privilege
• Calls for “striking of a
proper balance” between
freedom of the press the
obligation to testify
• Stewart wins by losing (but
not forever)

19. The balancing test in practice
• Relevance and importance of information

20. The balancing test in practice
• Relevance and importance of information
• Availability through alternative means

21. The balancing test in practice
• Relevance and importance of information
• Availability through alternative means
• Type of controversy
– Reporter’s privilege is weaker in a criminal case
than a civil case

22. The balancing test in practice
• Relevance and importance of information
• Availability through alternative means
• Type of controversy
• How information was gathered
– Confidential sources are more privileged than
first-hand observation

23. Shield laws
• About 30 states have them
– A shield law is being considered in
Massachusetts

24. Shield laws
• About 30 states have them
• Except for Wyoming, remaining states have
judicial opinions granting some degree of
journalistic privilege

25. Shield laws
• About 30 states have them
• Except for Wyoming, remaining states have
judicial opinions granting some degree of
journalistic privilege
• None is absolute — more like the Stewart
balancing test

26. Shield laws
• About 30 states have them
• Except for Wyoming, remaining states have
judicial opinions granting some degree of
journalistic privilege
• None is absolute — more like the Stewart
balancing test
• No federal shield law

27. What should be protected?
• Justice White said you
can’t define who is a
journalist
• Vanessa Leggett ran
afoul of this and
served 168 days
• Is it possible to define
journalism?

28. Cohen v. Cowles
Media Co. (1991)
• Damned if you do, damned if you don’t

29. Cohen v. Cowles
Media Co. (1991)
• Damned if you do, damned if you don’t
• Based on the doctrine of promissory estoppel
– A false promise that leads someone to engage in
damaging behavior
– Similar to contract law

30. Cohen v. Cowles
Media Co. (1991)
• Damned if you do, damned if you don’t
• Based on the doctrine of promissory estoppel
– A false promise that leads someone to engage in
damaging behavior
– Similar to contract law
• Justice White: “generally applicable laws” do
not violate First Amendment

31. McKevitt v. Pallasch (2003)
• Richard Posner a highly
influential conservative
judge
• Can’t ignore Supreme
Court precedent
• Tells colleagues to re-
read Branzburg and see
it for what it is

32. Judith Miller case (2005)
• Judge Sentelle adopts
Posner’s view
• Notes that Justice Powell
sided with the Branzburg
majority
• Adds that Justice
Department used
balancing test

33. Obama’s war on journalism
• Prosecuted 9 cases
against leakers, more
than his predecessors
• Named one journalist
an “unindicted co-
conspirator”
• James Risen warns
that Obama paved the
way for Trump

34. Trump and Reality Winner
• Intelligence specialist
leaked documents
about Russian
meddling
• The Intercept ineptly
revealed identifying
information
• Winner is now serving
five years in prison