1. Reporter’s Privilege How to Stay Out of Jail

2. What Are My Obligations? To your source To your source A promise to a source is an enforceable contract. A promise to a source is an enforceable contract. Cohen v Cowles Media Company (1991) Cohen v Cowles Media Company (1991) To your publication/company/editor(s) To your publication/company/editor(s)

3. Types of Promises Made to Sources Confidential Confidential Off-the-record Off-the-record On background On background Not for attribution Not for attribution Questions in advance Questions in advance Nature of article/publication Nature of article/publication

4. What Is the Law? What Law Applies? Why do we care?

5. Sources of the Privilege First Amendment First Amendment Common Law Common Law Statute Statute

6. What Law Applies? Federal Federal New York New York Other State Other State Other Country Other Country

7. Who Qualifies as a Journalist for Claiming the Privilege? Book author/publisher Book author/publisher Magazine author/publisher Magazine author/publisher Freelance author Freelance author Editor Editor First-time book author First-time book author Writer for established website Writer for established website Blogger Blogger

8. How Do the Laws Differ? What they protect What they protect Sources versus information Sources versus information Non-confidential versus confidential Non-confidential versus confidential Published versus unpublished Published versus unpublished Communications versus firsthand observations (eyewitness to a crime) Communications versus firsthand observations (eyewitness to a crime) What protection they give What protection they give Absolute versus qualified Absolute versus qualified If you are sued for defamation If you are sued for defamation

9. New York Shield Law (b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. … (c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. … the party seeking such news must make a “clear and specific showing” that the information: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source

10. The First Amendment Privilege Step One – U.S. Supreme Court Branzburg v Hayes (1972) Branzburg v Hayes (1972) Grand jury subpoena Grand jury subpoena 4-4-1 Decision 4-4-1 Decision Justice Powell’s concurrence: Justice Powell’s concurrence: “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

11. The First Amendment Privilege Step Two – Interpreting and Applying Branzburg Majority (but not unanimous) approach Majority (but not unanimous) approach There is no privilege when a reporter witnesses a crime. There is no privilege when a reporter witnesses a crime. There is a qualified privilege for confidential sources. There is a qualified privilege for confidential sources. There is a qualified privilege for non- confidential, unpublished information. There is a qualified privilege for non- confidential, unpublished information.

12. The First Amendment Privilege Step Two – Interpreting and Applying Branzburg Minority approach: the two extremes Minority approach: the two extremes No privilege exists. No privilege exists. There is a qualified privilege for published information. There is a qualified privilege for published information.

13. The First Amendment Privilege Step Three – the 21 st Century McKevitt v. Pallach (7 th Circuit July 2003) McKevitt v. Pallach (7 th Circuit July 2003) Wen Ho Lee (D.D.C. October 2003) Wen Ho Lee (D.D.C. October 2003) $500 a day; news media paid off the plaintiff $500 a day; news media paid off the plaintiff In re Special Proceedings (Taracani) (1 st Circuit June 2004) In re Special Proceedings (Taracani) (1 st Circuit June 2004) $1,000 a day; House arrest $1,000 a day; House arrest Vanessa Leggett Vanessa Leggett Jail Jail Judy Miller and Matt Cooper Judy Miller and Matt Cooper Jail Jail …and many more. …and many more.

14. Federal Shield Law S 448 Senate Judiciary Committee November 19, 2009 Confidential sources and information received in confidence – qualified privilege. Exhaustion of “all reasonable alternatives” in all cases, plus…

15. Federal Shield Law S 448 And in criminal cases, Reasonable grounds to believe a crime has occurred; Reasonable grounds to believe the information is “essential” to the investigation, prosecution, or defense; If DOJ is seeking it, AG certification that DOJ guidelines have been followed; The journalist has not established by “clear and convincing evidence” that disclosure would be contrary to the public interest…”

16. Federal Shield Law S 448 And in civil cases, The information sought is “essential to resolution of the matter”; and The party seeking the information has established that “the interest in compelling disclosure clearly outweighs the public interest in gathering and disseminating the news or information at issue and maintaining the free flow of information.”

17. Federal Shield Law S 448 Exemptions: Eyewitness to a crime “Reasonably necessary” to prevent death, kidnapping or substantial bodily harm Information would “materially assist” the government in “preventing or mitigating” an act of terrorism or another act that is a “reasonably likely to cause significant and articulable harm to national security.”

18. Federal Shield Law S 448 “Covered Person” “with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest …” has such intent “at the inception” obtains the information “in order to disseminate” it.

19. Application of the Privilege in a Libel Lawsuit Three alternatives (two bad) 1. Used as a sword…credible, long term source testimony 2. May not use the fact of a source for the information 3. Adverse inference

20. Summary There is no way to know in advance whether state or federal law will apply. There is no way to know in advance whether state or federal law will apply. There is no guarantee that a privilege will be recognized by the court you are in. There is no guarantee that a privilege will be recognized by the court you are in. If a privilege is recognized, it may be qualified and if it is, there is no way to know whether it will be overcome. If a privilege is recognized, it may be qualified and if it is, there is no way to know whether it will be overcome.

21. Access

22. Sources of Rights of Access First Amendment to the U.S. Constitution and various state constitutional provisions First Amendment to the U.S. Constitution and various state constitutional provisions Statutes (Freedom of Information Act) Statutes (Freedom of Information Act) Consent (express or implied) Consent (express or implied)

23. Types of Access To courts To courts To public meetings and proceedings To public meetings and proceedings To documents and materials To documents and materials

24. Access to Proceedings Criminal and civil court proceedings Criminal and civil court proceedings Press Enterprise Co. v Superior Court Press Enterprise Co. v Superior Court Administrative proceedings (e.g., deportation proceedings under immigration laws) Administrative proceedings (e.g., deportation proceedings under immigration laws) Public meetings and hearings Public meetings and hearings

25. Access to Places – What Are Your Rights? Private property Private property The property owner has a right to control access and conditions for access to his own property. The property owner has a right to control access and conditions for access to his own property. Access versus permission to take photographs. Access versus permission to take photographs. Ride alongs. Ride alongs. Posted property. Posted property. Implied consent Implied consent Shopping malls Shopping malls Door-to-door salesman rule Door-to-door salesman rule Disaster sites Disaster sites Police versus private property owner – who is in control? Police versus private property owner – who is in control?

26. Access to Places – What Are Your Rights? Public property Public property The press has a right to go anywhere the general public can go. The press has a right to go anywhere the general public can go. The press has a right to take photographs anywhere the general public can take photographs. The press has a right to take photographs anywhere the general public can take photographs. The press does not have a right to go anywhere the general public is not permitted to go. The press does not have a right to go anywhere the general public is not permitted to go. Individual members of the press cannot be discriminated against based on their publication’s content when gaining special access to public property. Individual members of the press cannot be discriminated against based on their publication’s content when gaining special access to public property.

27. Access to Places – What Are Your Rights? Public property – special access for the media Public property – special access for the media Must be non-discriminatory and reasonable Must be non-discriminatory and reasonable Can the government require… Can the government require… Fingerprinting and background checks Fingerprinting and background checks Liability waivers Liability waivers Restrictions on reporting or news coverage Restrictions on reporting or news coverage Press passes – what rights do they give you? Press passes – what rights do they give you?

28. Freedom of Information Act (FOIA) Making the Government Give You Documents

29. Alphabet Soup FOIA FOIA Federal “Freedom of Information Act” Federal “Freedom of Information Act” FOIL FOIL New York’s “Freedom of Information Law” New York’s “Freedom of Information Law”

30. FOIA Structure Statutory, not constitutional, right of access (except in Florida) Statutory, not constitutional, right of access (except in Florida) Right to inspect (and copy) records, not a right to information or interviews Right to inspect (and copy) records, not a right to information or interviews Statute applies only to enumerated agencies and right extends only to records or files within the scope of the law Statute applies only to enumerated agencies and right extends only to records or files within the scope of the law

31. What Can I Demand? Inspect Inspect Copy Copy Receive a copy in your preferred form (electronic or hard copy) Receive a copy in your preferred form (electronic or hard copy) Receive redacted copies of documents or computer databases if only some portions are exempt from disclosure. Receive redacted copies of documents or computer databases if only some portions are exempt from disclosure.

32. Fees Paper copies Paper copies Computer database records Computer database records Search fees Search fees Programming fees Programming fees Fee waivers Fee waivers

33. Exemptions Common exemptions include: Common exemptions include: Records revealing deliberative process, including preliminary drafts or notes Records revealing deliberative process, including preliminary drafts or notes Certain records of law enforcement agencies (relating to ongoing investigations) Certain records of law enforcement agencies (relating to ongoing investigations) Trade secrets Trade secrets Records containing uncorroborated allegations of criminal activity subject to destruction Records containing uncorroborated allegations of criminal activity subject to destruction

34. Process and Procedure Written request Written request Get a response Get a response Wait forever and don’t get a response Wait forever and don’t get a response Appeal within the agency Appeal within the agency File a lawsuit File a lawsuit

35. Tips for Making FOIA Request Ask for documents, not information Ask for documents, not information Make a straightforward request - don’t tell the agency why you want the records or why you think they should be disclosed Make a straightforward request - don’t tell the agency why you want the records or why you think they should be disclosed Break down request by category Break down request by category Request a fee waiver Request a fee waiver Include a telephone number Include a telephone number Keep a copy of your request Keep a copy of your request Make sure your request is dated Make sure your request is dated

36. Useful Source of Information Reporter’s Committee for Freedom of the Press Reporter’s Committee for Freedom of the Press www.rcfp.org www.rcfp.org How to Use the Federal FOI Act How to Use the Federal FOI Act

37. Open Meetings

38. Anonymous Speech Online

39. “Right” to Speak Anonymously Right to speak anonymously The Federalist Papers The Anonymous Leaflet Compelling a speaker to identify himself when speaking versus Precluding the government or courts from unmasking the identity of a speaker

40. “Right” to Speak Anonymously Allegedly libelous speech, online, by anonymous poster

41. Dendrite test Plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond Plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him/her to respond Plaintiff must identify the exact statements made by the poster Plaintiff must identify the exact statements made by the poster Complaint must set forth a prima facie cause of action Complaint must set forth a prima facie cause of action

42. Plaintiff must bring forth sufficient evidence for each element of its claim Plaintiff must bring forth sufficient evidence for each element of its claim Court must balance the strength of the speaker's claim to First Amendment protection against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity. Court must balance the strength of the speaker's claim to First Amendment protection against the strength of the plaintiff's underlying legal claim and the need for disclosure of the speaker's identity.

43. Does the shield law apply? Should it?

44. The End