Reporter’s have a responsibility to protect not only themselves but also their source and their company. So when problematic information is released, how can reporter’s protect all of those things while still being ethical? This chapter lays out the details of reporter’s privilege and what laws are in place (state-by-state) to try and protect everyone involved.
Many reporter’s base their reporting off of the First Amendment in which they have the right to free press; this, in a reporter’s eyes, should alone be the only factor that protects them from disclosing information about an anonymous source. However, if the source provides information that could crack a case, many people think that justice overrules the right of a reporter to withhold information just because the source wanted to stay anonymous.
Reporter’s privilege is a qualified one meaning that several conditions must be met for the reporter to quash, or revoke, the subpoena. This privilege and following conditions were heavily discussed after the case of Branzburg v. Hayes. This case dealt with reporter, Paul Branzburg, and two other journalists in which they would not share confidential information about their sources used to gain knowledge of the drug use and sales in Louisville, Kentucky. Branzburg said that revealing the sources involved would be a betrayal, but those people would no longer speak out for the case. Nor, would other sources in the future, hurting the reputation of the company. In a 5-4 Supreme Court decision, it was decided that the First Amendment did not protect Branzburg and the other journalists. The court favored public interest of having all the evidence for investigators to proceed with the search. One judge expressed that reporters should have absolute privilege to withhold confidential information no matter what. Another judge expressed that these privilege cases must be looked at case by case. The judges realized that looking at cases individually would be the best solution, so three conditions were made. These conditions will not protect reporters from reporting privileges:
- There is probable cause to believe the reporter has information clearly relevant to a specific violation of the law.
- The information being sought cannot be obtained by other mean that are less intrusive of the First Amendment values.
- There is compelling and overriding interest in the information.
(These conditions come straight from the text.)
The conditions are essentially saying that it is the last resort of a court to force reporters to give up confidential information. Also keep in mind that, freelance journalists are not usually protected. This is because they do not have professional background or work for a credible company.
Shield Laws
After Branzburg, many states created or revised their shield laws in which a journalist is protected from being found contempt in court. Every state has such laws except Wyoming, and there is no federal shield law so cases have to be looked at individually. Shield laws by state can vary widely, but each state is granting some form of reporter’s privilege. States have also found it hard dictating what distinguishes a journalist from a freelance journalist. For example, Minnesota defines a journalist in a very broad way, but most other states require journalist to be defined as someone who works full time for news media. Several states do think bloggers qualify in court to be defined as journalists or protected by reporter’s privilege. Types of information covered by shield laws also vary from state to state.
Search Warrants
A search warrant is a court order that allows law enforcement to conduct a search of a premise in hopes to find relevant items, evidence, or people. The Fourth Amendment says that searches must be done in a reasonable way, and there is also no way to legally delay or resist a search. Search warrants are used when subpoenas are not. Journalists believe that their newsrooms should not be allowed to undergo searches even under search warrants. However, the Supreme Court ruled that no special treatment of newsroom is discussed within the Fourth Amendment therefore keeping search warrants validated. However, the Privacy Protection act limits what exactly law enforcers can look for in a newsroom search. The protection says that no officer can request a journalists work that a journalist has in their possession.
It is important for journalists to know what shield laws will be protecting them in their states. A journalist should never stop reporting just because they don’t want to deal with confidentiality problems in court. Understand what you are getting yourself into and believe that the information you released is relevant for the public to know even under an anonymous source.
Journalism & Law 