talk a little about the Press privilege and um so I thought we' go into the news gatherers privilege right so we think about essentially shield laws right preventing the government from forcing journalists and media professionals from um sort of handing over disclosing um private information about their sources um and where they got information um about their story right um because often times you'll have the government want you know because they can't seem to find or they're lazy but they seem normally it's generally because they can't seem to get this Vital Information that they need for their let's say criminal investigation and they go after the journal says where did you get this information who was your Source we need the identity of that of that Source right so the first question you know is there a need for a reporter's privilege right is there a need right and you think about well we have physician patient privilege whoops physician patient privilege right so if you see a doctor uh if you see a psychotherapist and you know usually they inform you that what you're saying is in confidence right it's generally understood to be that way some of them are more explicit than others but um um especially with a psychotherapist I mean um you know it's probably be difficult for you um to see a psychotherapist if they didn't hold the conversation in confidence so the question is well why is it important to have um this privilege of of confidentiality um and it gets to well you know people won't be forthcoming they won't be as perhaps truthful or um um provide all the information that's necessary to provide Prov you with adequate care if you're you know especially if you're seeing a physician or a psychotherapist right if you AF like well if this isn't private I don't know what I'm going to share but this information might be vital to my health and kind of care I'm going to get so of course it's it's really important that we have these privileges of confidentiality so that you can get and people will be forthcoming people will provide information that's necessary to get um whether it's the adequate treatment um or in this case with news gatherers to get information that they couldn't get anywhere because maybe they're an Insider and if they weren't promised confidentiality then you know then they're certainly at risk professionally and sometimes personally right they can get death threats so they're worried about you know not just losing their job um how that'll affect their professional career and reputation okay so where did it all start this news gathers and actually you know it's a really interesting story because it goes back to Dorothy Wizard of Oz um of course played by Judy Garland great Judy Garland rest in peace and you know she was a star of wizard right so I think most of you recognize her from that from that film um but you know years later after wizard vas and some other films you know she you know had you know took some time off working in Hollywood and um you had this TV columnist right the New York heral Tribune um that was writing a story about Judy Garland like you know whatever happened to Judy Garland right it's like why isn't she why don't we see more of her right in in film um or in musicals Etc and um she was uh this Marie té was able to um through her sources get some information and quoted a source right and quoted a producer um who apparently um had knowledge um or allegedly had knowledge about you know why Judy wasn't in the Limelight anymore and he said well I don't know but I wouldn't be surprised if it's because she thinks she's terribly fat right so I guess it's more almost like speculation but this is what you know so now you have this journalist quoting this producer right and you know I don't know but I wouldn't be surprised because she thinks she's terribly fat so that seems like that could be um perhaps defamatory right um even though it's couched in sort of like speculation right um and so Garland sued for liable and defamation right so she sued for um or I should say liable under under defamation and of course to sue you got to know who you're suing so she's like well I want to know who this producer was that you're quoting because she alleges he defame me right and so subpoena the journalist say I demand the name of this executive who said that I you know I think that I'm fat right um and so of course the journalist said no I'm not going to provide that Source I'm not going to provide the identity um because she promised confidentiality and she was then held in contempt of court and serve 10 days in prison right so was really the first time that the Press um or this Free Press constitutional argument was made right so Tor said hey this is I have a constitutional um protection not to provide this Source right um and so you know you kind of have now these conflicting um um interests right and one it's of course is a free press and the importance of confid dentiality and having that privilege not to reveal it um you you know reveal that any of your sources um versus of course the interest of individuals who feel like they've been defamed their reputation's been harmed and they want Justice right they want satisfaction for that um and so you have these two conflicts I mean these two interests that come into conflict um and so we move ahead and the Supreme Court for the first time addresses a news gatherer privilege or you know addresses the potential for constitutional protection of um um of confidentiality least in terms of a a journalist's journalist confidentiality um and privilege with not you know by not revealing their sources so you have um Paul bransburg uh he was a a reporter for the The Courier Journal believe this is in Ohio and he hadd written an article about um you know these young uh uh individuals that were essentially creating illegal drugs right they were synthesizing hashish and state authorities had read this article by Paul bransburg and they're like hey we want we want the names of these individuals right that are creating these drugs and then ultimately Distributing them into the community and bransburg being a journalist said well no this is a confidential source and I promis them confidential I would never get this information if I didn't promise confidentiality um so the Supreme Court however the majority it was a split decision um so it could have went either way rejected the reporter's claims right so in other words they went against the journalists and um the idea of a news gather is privilege in this instance why well the Supreme Court the majority said listen you know you have an obligation to testify particularly in if this testimony is critical to the function of a criminal justice system right and two they said you know it's really difficult if we if we recognized a news gatherers privilege how do we Define the Press who counts as a journalist you have to have gone to colle do you have to have got you know received a bachelor's in journalism to be considered a journalist can you be a high school dropout considered a journalist can you be a Jour considered a journalist because you're reporting from your bedroom your garage and never having taken journalism classes and so there was a lot of you know debate about that but what's interesting is out of this court case you had some um um concurrent you had a concurrent opinion and um this concurrent opinion written by one of the justi ultimately became sort of de facto like you know a a kind of qualified news gallers privilege and so you know courts have really kind of patterned their shield laws after um after this qualified privilege that was um um mentioned and described in this concurrent opinion in the bransburg v vhes case so essentially I should say it's from the The Descent not a concurrent opinion so was someone who voted with the the four minority who said there should be a news G privilege but essentially what the The Descent stated was that um you know a news gaed privilege should be um honored um unless these three elements are satisfied so one you know a government has to show that there was probable cause to believe that a journalist had info relevant to a specific probable crime and by the way let me back up and say this qualified privilege pertains to criminal cases or criminal issues so not civil issues so if the government wants us info because it's they claim it's vital for a criminal investigation then you would have um this bransburg V haes qualified privilege um test kind of come into play so the government has to show that there's probable cause to believe that journalist had info relevant to a specific probable kind okay so they just have to show this journalist problem conss believe that they have relevant information about a specific problem two they have to say you know we can't get this information um from other sources right so we we've T tried all their Avenues we've exhausted them and the only hope we have now and the only way we can obtain this information that's critical to the criminal investigation is by um going to the journalist and asking for the identity of of their source and then number three is kind of this kind of catch all like you know of course the government has to show this compelling and overriding interest in the information right so it can't be something trivial right has to be something very very critical and material to the criminal investigation right maybe maybe it could be the murder weapon let's say um maybe it's the the um whereabouts of of the you know the the the perpetrator alleged perpetrator but but something serious and important very very important that you know information that the government thinks is extremely important and critical for their criminal investigation so those are the three um elements for qualified news gatherers privilege and it's qualified meaning if these elements are satisfied then there's a presumption of a constitutional protection in the confidentiality of your sources okay um so what's sort of the aftermath of bransburg right so journalists have really kind of De declined to disclose sources and um sometimes courts agree sometimes they don't depending on the facts but there's always been this kind of Unwritten rule I think among um members of the press of the journalism profession um regarding confidentiality right I mean plenty of journalists have have served time in jail because they're not willing to um reveal their their sources they they've promised confidentiality and they're going to honor that that promise um but then you have advancements also in communication technology that have led to some aggressive prosecutions um and legal process to kind of you know obtain information from reporters and journalists right so we know like with the surveillance programs um you know they've oftentimes uh uh uh been used to kind of track the metadata of journalists like who they're communicating with Etc um and and oftentimes they use this kind of in the past um some of this this technology um you know to kind of go after journalist to kind of think say Hey you know it sure seems like from the metadata you're communicating with person X and um and if you are then you know perhaps you know you're in violation of some federal law and either give us resources or we'll prosecute you kind of thing okay so um so the thing with the qualified news Gall privilege it is a testimonial privilege right and what that means is um usually a prosecutor because again we're in the criminal realm with this qualified news G privilege want some testimony from a reporter to assist the state's case um but then you know there's this interesting question but what about when a reporter has a confidential info that could help a defendant charged with a serious crime right that's that's kind of interesting it's kind of flipping flipping the script a bit usually the prosec wants to help wants your help in in you know Prosecuting someone um but a reporter could have confidential info that could help a defendant charged with a serious crime but you promise confidentiality so even though you think I can tell the prosecutor info that I have that I've gotten Inc confidence that would help a defendant you still have promised confidentiality so you need to honor that right with the person that you promise confidentiality with but if that person says fine you can reveal it then you got in consent and that's fine okay so currently there's no federal Shield law but all states have I know it says 49 but the fifth I believe was Wyoming and they recently did um pass a law that provided a press privilege or a shield law so it's like every state now has some form of a state shield law um and we've seen more um aggressive um you know aggressive tax tactics and um you know kind of aggressive posturing against journalists and and supposed leakers um under the uh Espionage Act that same act kind of going coming full circle from the first week uh of the quarter involving seditious speech in shank versus United States that that involved the Espionage Act of 1917 that same act been used against Daniel ellsburg for the Pentagon papers being used against um Julian Assange it's also being used against Ed Snowden um but it's also because you know technology is Advanced it's become easier to transfer information and and um so you're seeing an uptick in in sort of more aggressive you know uh moves and indictments and and administration's being more aggressive and going after journalists so there always the question is who is a journalist that's the big question um which is why it's difficult it has been difficult to get a uh a federal a national federal Shield law right and you know should like bloggers or you know who should fall under that that category um and so that difficulty remains today even though it seems like every Congressional um um I think like every two years every every you know um new uh uh Congressional um what's the word I want to use um session it's like you know you always have like you know members of Congress that say okay we we want to you know we want to pass a bill going to write a bill a national federal Shield law and then goes up for a debate and then usually dies because they have a hard time coming to consensus as to who is a uh who's a journalist so okay um I'm going to stop here if you have any questions again feel free contact me email me more than happy to to help out with anything I've gone over um you know with uh you know any of the material but of course here today with uh obscenity or news gatherers privilege okay thank you take care