The press and the legal system here in the US

I glossed over this story Reporter Gets Six Months Home Confinement in AOL news.
According the story, Jim Taricani

It also says


Now, my question. I’ve always heard that reporters for credible news agencies (say, for example, AP, ABC, New York Times, etc…)didn’t have to reveal sources and courts couldn’t make them. Is that not true?

Definitely not true. American reporters are famous for refusing to reveal their sources in the face of legal action, so many times judges and attorneys won’t even bother, but there’s no immunity – freedom of the press is freedom to publish, not to withhold.

Some states have what are known as “shield laws” that protect members of the press in the situation described in the OP. However, there is no Federal shield law. And since the OP deals with Federal grand jury leaks, the judge has a lot of leeway to punish reporters who don’t cooperate with him.

Ah, I see. Well, I guess you learn something new every day. Thank you.

Oops, your post got in their while I was replying to Nametag.
Anyway, thank you also. I had alway assumed that it was some kind of constitutional protection, or something like that.

Nah. The govenment can’t stop a journalist from investigating or publishing, but that doesn’t give the journalist any right to hide evidence, any more than an average citizen does.

The law is entitled to every man’s evidence. Although there are a handful of “privileges” which allow a person to legally refuse to give evidence, (attorney-client, matrimonial privileges, 5th Amendment, etc.) outside of these privileges you must testify when a court instructs you to. None of these privileges typically cover journalists.


A practicing lawyer could go into more depth on this question, but American law recognizes very few grounds on which one may refuse to testify:
[ol][li]Formerly, a wife or husband could not be compelled to testify against her/his spouse. Most jurisdictions have removed that privilege, but a few still keep it in place.[/li][li]A person’s attorney cannot be compelled to testify to what his client told him under attorney-client privilege – and in fact may not do so unless the client waives the confidentiality. According to a recent case in the North Carolina courts, which has not been reviewed at the Federal level, a court may compel testimony from the attorney of a deceased client when the information given in confidence by the client is significant to the criminal investigation of another person. (The story behind this was most interesting.)[/li][li]A clergyman cannot testify to what is told him in a sacramental confession or a reasonable equivalent, the latter being defined as where there is a presumption of confidentiality accruing to the conversation.[/li][li]A professional counselor is sometimes protected by the same privilege as the clergyman’s, depending on the laws of the jurisdiction.[/li][li]An individual having signed a confidentiality agreement is expected to honor that agreement until or unless compelled by order of the court to breach it. E.g., if you are a venture capitalist who has been induced to invest money in a company by provision of trade secrets that make clear why such an investment would be worthwhile, those trade secrets being provided you under a confidentiality agreement, it is not your privilege to make them public – but if the company officials are being investigated for stock fraud, a judge may release you from that agreement and require you to testify as to what you know.[/li]In some jurisdictions, a reporter has the privilege of declining to answer questions regarding sources he has agreed to keep confidential, until and unless ordered by the judge to respond. I.e., he may protect his sources from “fishing expedition” questions by a lawyer by interposing his promise of confidentiality when questioned, but may not conceal a crime and does not have an absolute right to do so, the judge having the authority to rule on whether the information is required with regard to the case.[/ol]

Plus, if you were to try to create such a privilege, you’d run into constitutional problems when you tried to define who is a journalist and who isn’t.

Branzburg v Hayes is the case on point regarding journalists’ supposed First Amendment right not to reveal sources. Long story short, SCOTUS said that with a rare exception, there is none.

The Court did find, however, that “[o]fficial harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources” might violate the First Amendment.

Here’s a good article on how this denial of privilege has mutated into the opposite in some lower court decisions. The mutation is rooted in a concurring opinion from Justice Lewis Powell and a dissent by Justice Potter Stewart.

Justice White’s a doper? Cool! :cool:

A journalist is just some guy with a word processor and a modem. Anyone and everyone in America with a LiveJournal or who posts on the Internet or who sends out email notices to their friends or who pins up the company newletter in the breakroom is a journalist.

Any law that enabled journalists to keep their sources confidential would apply to everyone.

Good point, although maybe you could craft it so it was activity-based, not credential-based.


Polycarp sets out a nice list with which I have some quibbles.

Technically, there are two matrimonial privilges. 1) The confidential marital communications privilege prohibits a person from disclosing confidential communications had with their spouse (or even ex-spouse if the communication occured during the marriage) without the spouse’s consent. 2) The marital testimonial privilege – a person may refuse to testify against his/her current spouse. The witness spouse holds the privilege, so if s/he wishes, s/he can testify against his/her spouse even over the spouse’s objections. I make no claim as to whether either of these privileges exists in any particular jurisdiction; some jurisdictions have both, some have none, some have one or the other, perhaps with different details. IIRC, originally the testimonial privilege could be invoked by both the witness spouse and the target spouse; this led to its weakening in the wake of our more modern view of spousal abuse.

Poly’s #5 isn’t a privilege at all, it’s a duty. They are very, very different things, and young lawyers get them confused all the damn time. A duty of confidentiality is a responsibility that a person has – he may not disclose the subject info unless ordered to by a Court. A privilege allows the person who doesn’t want to testify to refuse to give evidence in court. Any court of competent jurisdiction can order you to breach your confidences, no matter what you’ve signed to the contrary, and if you don’t do it you can go to jail. No court can require you to testify in breach of a privilege.