Journalists’ Privilege: Overview of the Law and 109th Congress Legislation

Journalists’ Privilege: Overview of the Law and 109th Congress Legislation

Order Code RS22205
Updated October 3, 2006
CRS Report for Congress
Received through the CRS Web
Journalists’ Privilege: Overview of the Law
and 109th Congress Legislation
Henry Cohen
Legislative Attorney
American Law Division
Summary
Journalists, the Supreme Court has written, claim “that to gather news it is often
necessary to agree either not to identify the source of information published or to publish
only part of the facts revealed, or both; that if the reporter is nevertheless forced to
reveal these confidences to a grand jury the source so identified and other confidential
sources of other reporters will be measurably deterred from furnishing publishable
information, all to the detriment of the free flow of information protected by the First
Amendment.”1 Though the Supreme Court concluded that the First Amendment does
not provide a journalists’ privilege, 49 states have adopted a journalists’ privilege, and
bills to adopt a journalists’ privilege have been introduced in the 109th Congress, 1st
session, in both the House and the Senate (S. 1419 and H.R. 3323). In addition, S. 2831
was introduced in the 109th Congress, 2d session.
The Supreme Court has written only one opinion on the subject of journalists’
privilege: Branzburg v. Hayes, in which the Court decided three cases. After explaining
the grounds on which journalists seek a privilege (quoted above), the Court noted that the
reporters in the cases it was considering were seeking only a qualified privilege not to
testify: “Although the newsmen in these cases do not claim an absolute privilege against
official interrogation in all circumstances, they assert that the reporter should not be
forced either to appear or to testify before a grand jury or at trial until and unless sufficient
grounds are shown for believing that the reporter possesses information relevant to a
crime the grand jury is investigating, that the information the reporter has is unavailable
from other sources, and that the need for the information is sufficiently compelling to
override the claimed invasion of First Amendment interests occasioned by the
disclosure.”2
In Branzburg v. Hayes, however, the Court held that the First Amendment did not
provide even a qualified privilege for journalists to refuse “to appear and testify before
1 Branzburg v. Hayes, 408 U.S. 665, 679-680 (1972).
2 Id. at 680.
Congressional Research Service ˜ The Library of Congress

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state or federal grand juries.”3 The only situation it mentioned in which the First
Amendment would allow a reporter to refuse to testify was in the case of “grand jury
investigations ... instituted or conducted other than in good faith. ... Official harassment
of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s
relationship with his news sources would have no justification.”4
The reporters in all three of the cases decided in Branzburg had sought a privilege
not to testify before grand juries. At one point in its opinion, however, the Court wrote
that “reporters, like other citizens, [must] respond to relevant questions put to them in the
course of a valid grand jury investigation or criminal trial.”5 The reference to criminal
trials should be considered dictum, and therefore not binding on lower courts.

Branzburg was a 5-4 decision, and, though Justice Powell was one of the five in the
majority, he also wrote a concurring opinion in which he found that reporters have a
qualified privilege to refuse to testify regarding criminal conduct:
Indeed, if the newsman is called upon to give information bearing only a remote and
tenuous relationship to the subject of the investigation, or if he has some other reason
to believe that his testimony implicates confidential source relationships without a
legitimate need of law enforcement, he will have access to the Court on a motion to
quash and an appropriate protective order may be entered. 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.6
Powell’s opinion leaves it uncertain whether the First Amendment provides a
qualified privilege for journalists to refuse to testify before grand juries.7 But “courts in
almost every circuit around the country interpreted Justice Powell’s concurrence, along
with parts of the Court’s opinion, to create a balancing test when faced with compulsory
process for press testimony and documents outside the grand jury context.”8
Whether or not the First Amendment provides a journalists’ privilege, Congress and
state legislatures may enact statutory privileges, and federal and state courts may adopt
3 Id. at 667.
4 Id. at 707-708.
5 Id. at 691.
6 Id. at 710.
7 Justice Stewart’s dissenting opinion in Branzburg referred to “Justice Powell’s enigmatic
concurring opinion.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though providing the
majority’s essential fifth vote, he [Powell] wrote separately to outline a ‘case-by-case’ approach
that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of
the reporters’ claims.” In re: Grand Jury Subpoena, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel,
J., concurring)(citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005 (Tatel,
J., concurring), cert. denied, 125 S. Ct. 2977 (2005).
8 Association of the Bar of the City of New York, The Federal Common Law of Journalists’
Privilege: A Position Paper (2005) at 4-5 [http://www.abcny.org/pdf/report/White%20paper
%20on%20reporters%20privilege.pdf]

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common-law privileges.9 Congress has not enacted a journalists’ privilege, though bills
that would do so have been introduced in the 109th Congress and are discussed below.
Thirty-one states and the District of Columbia have enacted journalists’ privilege statutes,
which are often called “shield” laws.10
As for federal courts, Federal Rule of Evidence 501 provides that “the privilege of
a witness ... shall be governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason and experience.”11 The
federal courts have not resolved whether the common law provides a journalists’
privilege. The U.S. Court of Appeals for the District of Columbia, for one, “is not of one
mind on the existence of a common law privilege [in federal court]. ... However, all
[three judges on the panel for the case] believe that if there is any such privilege, it is not
absolute and may be overcome by an appropriate showing.”12
As for state courts, those in 18 states provide common law protection, making a total
of 49 states plus the District of Columbia that have a journalists’ privilege.13 Wyoming
is the state without either a statutory or common-law privilege.
In 1980, the Department of Justice adopted a rule, which remains in effect without
amendment, providing in part: “In determining whether to request issuance of a subpoena
to a member of the news media, or for telephone toll records of any member of the news
media, the approach in every case must be to strike the proper balance between the
public’s interest in effective law enforcement and the fair administration of justice.”14
In re: Grand Jury Subpoena
In re: Grand Jury Subpoena is the federal court of appeals decision that declined to
overturn the finding of civil contempt against journalists Judith Miller and Matthew
Cooper for refusing to give evidence in response to subpoenas served by Special Counsel
Patrick Fitzgerald in his investigation of the disclosure of the identity of a CIA agent.15
9 See Branzburg, supra note 1, 408 U.S. at 706.
10 These statutes are set forth in CRS Report RL32806, Journalists’ Privilege to Withhold
Information in Judicial and Other Proceedings: State Shield Statutes. Eighteen of these statutes
existed at the time of Branzburg; 13 states and the District of Columbia have enacted them since
1972. Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting
the Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and
Information, 20 Yale Law and Policy Review 97, 110 (2002).
11 Rule 501 also provides that, in civil actions and proceedings brought under state law, the
privilege shall be determined in accordance with state law. The Federal Rules of Evidence are
codified in title 28 of the U.S. Code.
12 In re: Grand Jury Subpoena, supra note 7, at 972.
13 The figure of 18 appears in In re: Grand Jury Subpoena, supra note 7, at 994. Citations to 14
of these 18 appear in footnote 6 on page 18 of Association of the Bar, supra note 8.
14 28 C.F.R. § 50.10.
15 In re: Grand Jury Subpoena, supra note 7.

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After the Supreme Court declined to review the decision, Matthew Cooper agreed to
testify, but Judith Miller continued to refuse and was imprisoned as a result.
The case was decided by a three-judge panel that issued an opinion for the court
written by Judge Sentelle, with all three judges — Sentelle, Henderson, and Tatel —
issuing separate concurring opinions. The court’s opinion, citing Branzburg, held that the
First Amendment does not permit journalists to refuse to testify before a grand jury; and
said (as quoted above) that the court was not of one mind on the existence of a common-
law privilege but that, even if there is one, the special counsel had overcome it.
As for the three concurring opinions, Judge Sentelle expressed his view that there
is no common-law privilege; Judge Henderson expressed her view that, in the interest of
judicial restraint, the court should not “decide anything more today than that the Special
Counsel’s evidentiary proffer overcomes any hurdle, however high, a federal common-
law reporter’s privilege may erect”; and Judge Tatel addressed the issues of both the
constitutional privilege and the common-law privilege.16
As for the constitutional privilege, Judge Tatel said that he was “uncertain,” in the
light of Justice Powell’s “enigmatic concurring opinion” in Branzburg, that there is no
“constitutional reporter privilege in the grand jury context.” Even if there is, however,
he agreed that such a privilege would not benefit Miller or Cooper in the case before the
court. As for the common-law privilege, Judge Tatel concluded that “‘reason and
experience’ [quoting Federal Rule of Evidence 501] as evidenced by the laws of forty-
nine states and the District of Columbia, as well as federal courts and the federal
government, support recognition of a privilege for reporters’ confidential sources.” Judge
Tatel found, however, that, in the present case, “the special counsel has established the
need for Miller’s and Cooper’s testimony.”
Pending Journalist Shield Bills
On July 18, 2005, identical bills were introduced in the Senate and the House
(S. 1419 and H.R. 3323), introduced by Senator Lugar and Representative Pence,
respectively, but both with bipartisan support.17 On October 19, 2005, the Senate
Committee on the Judiciary held a hearing on S. 1419. Previously, on July 20, 2005, the
Committee held a hearing on “Reporters’ Shield Legislation: Issues and Implications.”
Matthew Cooper, mentioned above in connection with In re: Grand Jury Subpoena,
16 Judge Tatel also wrote that, to conclude, as Judge Henderson had, “that the Special Counsel’s
evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter’s
privilege may erect,” requires the adoption of a standard by which to determine when the
privilege is overcome. But, to adopt a standard without first determining that a privilege exists
would be, if a privilege does not exist, to “establish a precedent, potentially binding on future
panels, regarding the scope of the assumed privilege, even though resolving that question was
entirely unnecessary.” This would be “an undertaking hardly consistent with principles of
judicial restraint.” Id. at 989-990.
17 S. 1419 is a revision of Sen. Lugar’s S. 340, 109th Cong., and H.R. 3323 is a revision of Rep.
Pence’s H.R. 581, 109th Cong. The two earlier bills are identical to each other. Another
journalists’ shield bill, S. 369, was introduced by Sen. Dodd, but Sen. Dodd later cosponsored
S. 1419.

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reportedly testified that, “[w]ithout whistle-blowers who feel they can come forward to
the reporters with a degree of confidence, we might never have known the extent of the
Watergate scandal or Enron’s deceptions or events that needed to be exposed.”18 The
Department of Justice, however, opposed the legislation, with Deputy Attorney General
James Comey stating in written testimony that “[t]he bill is bad public policy primarily
because it would bar the government from obtaining information about media sources —
even in the most urgent of circumstances affecting the public’s health or safety or national
security.”
S. 1419/H.R. 3323 would establish a qualified privilege with respect to both the
identity of a source and other information, but it would impose greater limitations on the
ability to compel disclosure of the identity of a source than of other information. We will
pose and answer questions about its salient features.
Where would the privilege apply? S. 1419/H.R. 3323 would apply in any “Federal
entity,” which the bill defines to include the executive branch, the judicial branch, and
administrative agencies, but not the legislative branch. The bill would not apply in state
courts or other state entities.
What would be protected from disclosure? S. 1419/H.R. 3323 would protect
(subject to qualifications discussed below) any testimony and any documents. Its privilege
would not apply to “any testimony or document that consists only of commercial or
financial information that is not related to news gathering or the dissemination of news
and information by the covered person.”
Who could refuse to disclose? S. 1419/H.R. 3323 provides that a “covered person”
— a person who may assert the privilege that the bill would create — is “an entity that
disseminates information by print, broadcast, cable, satellite, mechanical, photographic,
electronic, or other means and that — (i) publishes a newspaper, book, magazine, or other
periodical in print or electronic form; (ii) operates a radio or television broadcast station
. . . cable system, or satellite carrier, or . . . (iii) operates a news agency or wire service.”
A “covered person” under the bill would also include “a parent, subsidiary, or affiliate of
such an entity to the extent that such parent, subsidiary, or affiliate is engaged in news
gathering or the dissemination of news and information; or . . . an employee, contractor,
or other person who gathers, edits, photographs, records, prepares, or disseminates news
or information for such an entity.”
The bill’s privilege would “apply to any testimony or document that a third party or
a Federal entity seeks from a communications service provider if such testimony or
document consists of any record, information, or other communication that relates to a
business transaction between a communications service provider and a covered person.”
A “communications service provider” would be defined as “any person that transmits
information of the customer’s choosing by electronic means; and . . . includes a
telecommunications carrier, an information service provider, an interactive computer
service provider, and an information content provider (as such terms are defined in the
sections 3 and 230 of the Communications Act of 1934 (47 U.S.C. 153, 230)).” In other
18 Eunice Moscoso, “Proposed media shield law draws fire,” Atlanta Journal-Constitution (July
21, 2005).

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words, this provision would allow a covered person’s telephone company or Internet
service provider, for example, to assert a privilege not to disclose the covered person’s
phone or e-mail records.
The third party or Federal entity seeking to compel testimony or a document from
a communications service provider would have to give notice to the covered person who
is a party to the business transaction with the communications service provider, and the
covered person would be entitled to be heard by the court before the testimony or
disclosure is compelled.
The bill’s requirement as to what an entity must publish or operate to be a covered
person would limit the bill’s coverage so that it apparently would not protect bloggers or
others who post on the Internet, except those who write for Webzines (unless a blog were
considered a magazine). It would apparently also not protect a freelance reporter who
gathered information while having no contract with an entity to do so. If he subsequently
sold the information to an entity, however, he might be viewed as a “contractor” or as a
“person who gathers . . . news or information for such an entity”; this would depend upon
how the quoted terms are construed.
S. 1419 apparently would also not protect people who gather news to disseminate
solely on street corners, or who gather news that they attempt to publish solely in letters
to the editor.
What exceptions would permit disclosure to be compelled? S. 1419/H.R. 3323’s
privilege would be qualified with respect both to the identity of a source and to other
information, but it would impose additional limitations on compelling disclosure of the
identity of a source. A federal entity would not be permitted to compel disclosure of any
testimony or document — that would reveal sources or other information — unless a
court determines by clear and convincing evidence that the entity “has unsuccessfully
attempted to obtain such testimony or document from all persons from which such
testimony or document could reasonably be obtained other than a covered person.” In
addition, “in a criminal investigation or prosecution based on information obtained from
a person other than the covered person,” the court would have to find, for disclosure to
be compelled, that “there are reasonable grounds to believe that a crime occurred” and
that “the testimony or document sought is essential to the investigation, prosecution, or
defense. . . . [I]n a matter other than a criminal investigation or prosecution, based on
information obtained from a person other than a covered person, the testimony or
document sought [would have to be] essential to a dispositive issue of substantial
importance to the matter.”
To compel disclosure of the identity of a source or of information that could
reasonably be expected to lead to the discovery of the identity of a source, the court would
have to find, in addition to the above items, that disclosure is (1) “necessary to prevent
imminent and actual harm to national security,” (B) “would prevent such harm,” and (C)
“the harm sought to be redressed . . . outweighs the public interest in protecting the free
flow of information.”
Update: On May 18, 2006, Senator Lugar introduced a new journalists’ privilege bill
— S. 2831, 109th Congress. The Senate Committee on the Judiciary held hearings on it
on September 20, 2006.