1) The 1957 Garland v. Torre case established the "birth of the reporter's privilege" when a writer for the New York Herald Tribune was held in contempt for refusing to disclose a confidential source in a libel case. 2) The 1972 Branzburg v. Hayes Supreme Court case rejected a reporter's privilege, ruling that reporters have an obligation to testify in criminal cases, but a dissent argued for a qualified privilege. 3) While there is no federal shield law, 49 states have laws providing some level of protection for journalists, but debates continue over who qualifies as a journalist in the digital age.

1. NEWSGATHERER’S
PRIVILEGE
Media Law
Michael K. Park, Esq.

2. James Risen, NYT
NYT writer, and author of State of War,
Risen interviewed confidential CIA sources to write
the book.

3. Is there a need for a reporter’s
privilege?

4. Garland v. Torre (1957)
“Birth of the Reporter’s Privilege”
Marie Torre (TV Columnist) for New York Herald Tribune wrote
a column about Judy Garland

5. Garland v. Torre
A Producer was quoted: “I don’t know, but I wouldn’t
be surprised if its because she thinks she’s terribly fat.”
Garland sued for libel and demanded the name of the
executive

6. Garland v. Torre
The writer (Torre) refused and she was held in
contempt and ordered to serve 10 days in prison
It was the first time that free press constitutional
argument had ever been made
Free press (confidentiality) v. Interest of the defamed
to repair reputation

7. Branzburg v. Hayes (1972)
Paul Branzburg, a reporter for Courier-Journal had
written an article describing young people synthesizing
hashish. State authorities wanted their names.

8. Branzburg v. Hayes
5 to 4, USSC rejected the reporter’s claims
Why?
Obligation to testify is critical to the
functioning of our criminal justice system
Difficulty of defining “the press”; who
counts as a “journalist?”

9. Branzburg v. Hayes
Qualified Privilege? From the dissent:
(1) The gov showed there was a probable cause to
believe that journalist had info relevant to a specific
probable crime;
(2) the gov showed that it could not obtain the info
from other sources;
(3) the gov showed“a compelling and overriding
interest in the information”

10. Aftermath of Branzburg
Journalists have declined to disclose sources
(sometimes lower courts agreed, sometimes not)
For many years, there was a “unwritten” agreement
between “the Press” and government regarding
confidentiality.
Advancements in communication technology have led
to aggressive prosecutions and legal process to obtain
information from reporters/journalists.

11. Vanessa Leggett
Leggett set out to right a book about a notorious murder
After many interviews, a federal grand jury subpoenaed her
and demanded her notes and names of her sources
She refused and spend 168 days in jail
She was not a journalist

12. Valerie Plame

13. Jana Winter Case

14. Testimonial Privilege
Often times, a prosecutor wants
testimony from a reporter to assist
the State’s case, but what about
when a reporter has a confidential
info that could help a defendant
charged with serious crime?

15. Federal Shield Law
No current federal shield law
However, 49 states (including CAL and New York)
have state shield laws or press privileges
Obama Administration has indicted 9 “leakers” under
the Espionage Act; only 3 were prosecuted since 1917.
Who is a “journalist” ? Should bloggers be included?

16. Federal Shield Law
Current House bill version uses a “function”
test:
“A person who regularly gathers, prepares,
collects, photographs, records, writes, edits,
reports, or publishes news or info that
concerns local, national or international
events or other matters of public interest for
dissemination to the public for a substantial
portion of the person’s livelihood.

17. Reporter’s Privilege Obsolete?