Mass Media Law 18th Edition Don Pember Clay Calvert Chapter 10 Protection of News Sources/ Contempt Power © 2013 McGraw-Hill Companies. All Rights Reserved. McGraw-Hill/Irwin

News and News Sources Promises of Confidentiality Some sources won’t talk unless you promise them confidentiality To renege on a promise is to risk a lawsuit filed by the source

News and News Sources Tips for Reporters on Promising Confidentiality: Do not routinely promise confidentiality as a standard interview technique Avoid giving an absolute promise of confidentiality Do not rely exclusively on information from a confidential source

News and News Sources Tips for Reporters on Promising Confidentiality: Consider whether others (police attorneys, etc…) will want to know the identify of he source before publishing or broadcasting the material. Consider whether you can use the information without disclosing that is was obtained from a confidential source.

News and News Sources The Failure to Keep a Promise Cohen v. Cowles Media (1992) The First Amendment does not shield journalists from lawsuits or civil liability when they breach promises of confidentiality to their sources

News and News Sources The Failure to Keep a Promise Cohen v. Cowles Media (1992) Promissory Estoppel: The legal theory on which the plaintiff in Cohen v. Cowles Media prevailed after journalists breached promises of confidentiality to him The theory allows courts to enforce promises, even though there is no legally binding contract, in order to avoid injustice

News and News Sources Four Key Elements of Promissory Estoppel: The defendant made a clear and definite promise to the plaintiff; The defendant intended to induce the plaintiff’s reliance on that promise; The plaintiff reasonably relied on the promise to his or her detriment; and The promise must be enforced in the interests of justice to the plaintiff.

Constitutional Protection of News Sources Branzburg v. Hayes, 1972 The U.S. Supreme Court ruled that the scope of protection varies depending upon: The type of proceeding (grand jury, criminal case, civil case) The appellate jurisdiction in which the case in question arises, and The nature of the information

Constitutional Protection of News Sources Civil Cases Courts are most likely to recognize the right of a journalist to refuse to testify in a civil case

Constitutional Protection of News Sources Civil Cases Courts will consider: Is the information of certain relevance in the case? Does the information go to the heart of the issue before the court? Can the person who wants the information show there is no other source for the information?

Constitutional Protection of News Sources Criminal Cases In these cases, courts must balance journalistic privilege with the Sixth Amendment right of the defendant to compel testimony

Constitutional Protection of News Sources Grand Jury Proceedings Courts have routinely denied a First Amendment privilege to withhold information from grand jury hearings

Constitutional Protection of News Sources Special Prosecutors Courts have refused to extend a reporter’s privilege when confidential information is requested by a special prosecutor

Constitutional Protection of News Sources Anonymity and the Internet Can parties in a lawsuit force Internet Service Providers (ISPs) to reveal the names of persons who post anonymous messages online? Courts are split – some have required ISPs to reveal the names, and others have established difficult barriers to overcome before this information is given

Constitutional Protection of News Sources Nonconfidential Information and Waiver of the Privilege Courts have been reluctant to protect reporters when nonconfidential information is at issue Most subpoenas issued today to journalists are to gain access to nonconfidential information

Constitutional Protection of News Sources Who is a Journalist? In re Madden, 1998 The 3rd U.S. Circuit Court of Appeals defined a journalist as someone who: Is engaged in investigative reporting Is gathering news; and Possesses the intent at the beginning of the news-gathering process to disseminate this news to the public

Constitutional Protection of News Sources Telephone Records There is no First or Fourth Amendment right protecting telephone subscribers from being denied notification when their records are turned over to the government in a felony investigation

Legislative and Executive Protection of News Sources Shield Laws Virtually every state has some protection for reporters 40 states now have “shield laws” that provide varying degrees of protection to journalists who seek to keep confidential sources and information

Legislative and Executive Protection of News Sources Shield Laws Congress is currently considering legislation that would establish a federal shield law

Legislative and Executive Protection of News Sources Newsroom Searches A law enforcement agency may conduct a warranted search of a newsroom to find work products: When there is a probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials will relate. Where there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of or serious harm to a person.

Legislative and Executive Protection of News Sources Newsroom Searches A search warrant may be used instead of a subpoena to obtain documentary materials if: There is a reason to believe that the giving of notice pursuant to gaining a subpoena would result in the destruction, alteration, or concealment of such materials. That such materials have not been provided in response to a court order directing compliance with a subpoena, all other legal remedies have been exhausted, and there is reason to believe that further delay in gaining the material would threaten the interests of justice.

Legislative and Executive Protection of News Sources How to Respond to a Subpoena Try to avoid the problem by not offering promises of confidentiality unnecessarily Discuss the matter with an editor Don’t talk with anyone outside of the paper If the subpoena requests only published material or video previously broadcast, you may be able to provide the material without dispute Begin gathering material for a subpoena as soon as it is served If you believe source names should be withheld, but the newspaper does not, hire your own lawyer

The Contempt Power Contempt and the Press Situations most likely to result in contempt problems for the press include: Failure to pay a judgment in a libel or privacy case Failure to obey a court order Refusal to disclose the identity of a source Critical commentary about the court Tampering with a jury

The Contempt Power Limitations on the Contempt Power Legislative Limits Congress has passed laws that limit use of the summary judgment power of federal judges to dispose of contempt citations

The Contempt Power Limitations on the Contempt Power Court-Imposed Limits The Federal Rules of Criminal Procedures requires that in many instances notice be given the contemnor and a hearing be allowed

The Contempt Power Limitations on the Contempt Power First Amendment Limitations The U.S. Supreme Court ruled that freedom of the press to comment on the judiciary must be protected except in those circumstances where the commentary presents a serious threat to the proper functioning of the legal process

The Contempt Power Collateral Bar Rule Rule that requires all court orders, even those that appear to be unconstitutional and are later deemed to be unconstitutional by an appellate court, must be obeyed until they are overturned