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| CONFIDENTIALITY |
| Under what circumstances may journalists be compelled to testify? |
| Case | Facts | Significance |
| Branzburg v. Hayes (1972) | Three reporters (Branzburg, Caldwell, Pappas) refused to testify in response to grand jury subpoenas. They did not want to give up sources and testify about the criminal activities they may have witnessed. Supreme Court ruled 5-4 that journalists do not have an absolute First Amendment right to refuse testimony before court. Justice White said that "the public has a right to every man's evidence," particularly in grand jury hearings. | Most lower courts followed the "Branzburg math," adding opinions of one concurring and four dissenting justices, who supported a three part test which has since become norm in testing subpoenas to journalists (Government has burden of proof to show that information is directly relevant to the underlying case, is not available from other sources and that it has compelling & overriding interest in information sought) .Branzburg majority still followed in grand jury subpoenas. Questions |
| U.S. v. Burke (1983) 700 F. 2nd 70, 9 Media Law Reporter 1211 | Burke, a mobster, received 20 years in prison for a basketball point-shaving racket, because another mobster, Henry Hill, turned state's evidence. On appeal, Burke argued that trial judge should have ordered Sports Illustrated to submit materials for an article on the gambling scheme, co-written by Hill, that would show Hill's unreliability. | Applying the 3-part test laid down by Justice Stewart in Branzburg v. Hayes, the 2nd Circuit found that though the information sought from S.I. was relevant to Burke's defense, it was available from other sources and was not necessary or critical to Burke's defense, because it would prove what was already known, that Hill was a multiple felon whose credibility was already rock-bottom.Questions |
| In re Farber (1978), 394 A. 2nd 330, 4 Media Law Reporter 1360 | Myron Farber, a reporter for the New York Times, had material which accused murderer Dr. Mario Jascalevich thought was critical to his defense. The N.J. Supreme Court ignored the state shield law and ordered Farber to disclose the information. Farber refused and spent 40 days in jail. | N.J. Supreme Court held that both
the State and the Federal constitutional provisions pertaining to the
defendant's 6th Amendment right to "have compulsory forces for obtaining
witnesses against him" outweighed the journalist's interest in protecting
confidentiality. Questions |
| Star Editorial v. U.S. District Court, 7 F3rd 856, 21 Media Law Reporter 2281 (1993) | Story in The Star, relying in part on confidential sources, said that comedian Rodney Dangerfield had been cavorting drunk in an L.A. hotel room with two naked women. Rodney sued for libel and demanded names of confidential sources to strengthen his case. The 9th Circuit Court decided he had a right to the information. | In libel cases where media are defendants, it's a lot harder to maintain confidentiality of sources. Here, despite California's constitutional shield provision, court decided that information sought was relevant, not available from other sources and important (compelling). Dangerfield, as a public figure, had to prove "actual malice" against the tabloid, which he could not do without knowing the nature of the confidential sources.Questions |
| Cohen v. Cowles Media (1991) | Cohen, a PR consultant to a gubernatorial candidate, spoke on condition of confidentiality to newspapers and leaked a story of a minor shoplifting incident involving an opposing candidate 12 years ago. Reasoning that Cohen's reprehensible political tactics were newsworthy, the editors named Cohen, who lost his job and sued the newspaper for breach of contract. Supreme Court upheld promise on basis of promissory estoppel law that allowed those hurt by reliance on a broken promise to sue for damages. | News media who break promises of confidentiality may be sued for damages.Questions |
| Zurcher v. Stanford Daily
(1978) |
Photographers for The Stanford Daily took pictures of riot at University Hospital in which demonstrators assaulted several police officers. County D.A. obtained warrant to search paper's offices to obtain prints, film and negatives of incident. Supreme Court upheld search, holding that news establishments had no special privileges against search warrants if authorities believed they could find criminal evidence there. | Privacy Protection Act, passed by
Congress in reaction to the Zurcher case, shields newsrooms from most
searches by establishing stringent standards. Questions |
|
(2005) |
Majority affirms Branzburg majority rule in current case involving White House leak. Analysis of recent cases can be found here. | Take a look at the opinion by Judge Tatel, much more sympathetic to a qualified privilege for reporters, although he finds none here. Read this article in American Journalism Review about confidentiality crisis, and this op-ed piece by Vanessa Leggett, a book author who was jailed for 168 days for refusing to reveal her source. |
|
(2001) |
Trial court judge quashes subpoena issued to fledgling video producer after Hells Angels fracas, citing MT shield law | Judge Harkin issues a broad ruling in support of Montana journalists. See Montana's shield law (MCA 26-1-901) See this national guide to shield laws. |