Press Privilege and News Gatherers' Privilege

Overview

• Press Privilege: Legal protection preventing journalists from being forced by the government to disclose private information about their sources.
• Shield Laws: Laws that prevent the government from forcing journalists to disclose information about their sources.
• Reporter’s Privilege Needs: Similar to physician-patient confidentiality; ensures sources are open and honest without fear of repercussions.

Importance of Confidentiality

• Encourages sources to provide truthful information necessary for news reporting.
• Protects sources from professional and personal risk, including job loss and potential threats.

Historical Background

• Case Example: Journalist Marie Té and the Judy Garland case.
  • Garland sued for libel and defamation, subpoenaed the journalist for the source's identity.
  • Journalist refused to disclose, resulting in her imprisonment.
  • Raised constitutional argument for free press and confidentiality.

Supreme Court and News Gatherer Privilege

• Bransburg v. Hayes Case: First time Supreme Court addressed news gatherer privilege.
  • Paul Bransburg: Reporter wrote about illegal drug synthesis.
  • Refused to disclose sources; Supreme Court rejected his claim for privilege.

Court's Reasoning

• Obligation to testify if testimony is critical to justice system.
• Difficulty in defining who qualifies as a journalist.

Qualified Privilege

• Descent Opinion in Bransburg Case: Led to a de facto qualified privilege.
  • Courts patterned shield laws after this qualified privilege.

Qualified News Gatherer's Privilege Elements

1. Government must show probable cause that journalist has info relevant to a specific probable crime.
2. Information cannot be obtained from other sources.
3. Compelling and overriding interest in the information.

Aftermath and Current Situation

• Journalists often refuse to disclose sources, sometimes facing jail time.
• Advancements in communication technology have led to aggressive prosecutions.

Federal and State Shield Laws

• No federal Shield Law, but all states have some form of state shield law.
• Espionage Act used aggressively against journalists and leakers (e.g., Assange, Snowden).

Challenges

• Difficulty defining who is a journalist (e.g., bloggers).
• Efforts to establish a federal Shield Law face challenges, often dying in Congress.

Conclusion

• Questions on who qualifies as a journalist continue to pose challenges for national federal Shield Law.
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