Branzburg v. Hayes, reporters’ privilege & circuit courts

Tuesday, July 12, 2005

This compilation is a guide to how the circuit courts have ruled on a First
Amendment privilege for reporters in protecting confidential sources.

Branzburg v. Hayes overview

v. Hayes,
decided in 1972 by the U.S. Supreme Court, is the
consolidation of four cases that addressed the issue of reporters’ privilege.
“The issue in these cases” as stated by Justice Byron White, “is whether
requiring newsmen to appear and testify before state or federal grand juries
abridges the freedom of speech and press guaranteed by the First Amendment.”

Two of the cases, Branzburg v. Hayes and Branzburg
v. Meigs,
involved Louisville (Ky.) Courier-Journal staff
reporter Paul M. Branzburg. In 1969, Branzburg wrote an article detailing his
observations of two young area residents synthesizing hashish from marijuana,
doing which, they asserted, earned them about $5,000 in three weeks. Branzburg
wrote in the article that he had promised not to reveal the identities of the
two individuals. Shortly afterward, Branzburg was subpoenaed by a grand jury. He
appeared but refused to identify any individuals mentioned in his article. In
the second case, Branzburg was subpoenaed again after he published an article in
1971 describing in detail the use of drugs in Frankfort, Ky. In this instance
Branzburg moved to quash the subpoena. The Kentucky Court of Appeals rejected
any claim of a First Amendment privilege in these cases.

The third case, In re Pappas, involved newsman-photographer Paul
Pappas. While covering civil unrest in New Bedford, Mass., in July 1970, Pappas
was allowed to enter and remain in the New Bedford Black Panther headquarters.
His entry was allowed on the condition that he not disclose anything he saw or
heard in the headquarters except in connection with an anticipated police raid
on the headquarters. Pappas ended up writing no story, as there was no raid;
however, he was subpoenaed to appear before a grand jury to testify on what he
saw in the headquarters. Pappas entered a motion to quash on First Amendment and
other grounds but it was denied by the trial court judge, who ruled that Pappas
had no constitutional privilege to refuse to divulge to the grand jury what he
had seen and heard, including the identity of persons he had observed. The
Supreme Judicial Court of Massachusetts affirmed the ruling.

In the fourth case, United States v. Caldwell, Earl Caldwell, a
reporter for The New York Times assigned to cover the Black Panther Party
and other black militant groups, was subpoenaed twice in 1970 to testify about
what he had learned concerning the aims, purposes and activities of the Black
Panthers. Caldwell refused to testify and entered a motion to quash. The
district court denied the motion on the ground that “every person within
the jurisdiction of the government” is bound to testify upon being properly
summoned. The court eventually held Caldwell in contempt. The 9th U.S. Circuit
Court of Appeals reversed the decision and “determined that the First Amendment
provided a qualified testimonial privilege to newsmen.”

The U.S. Supreme Court affirmed the judgments in the first
three cases and reversed the fourth. Justice White wrote the opinion of the
majority in the 5-4 decision and summed up the crux of the case this way: “The
heart of the claim is that the burden on news gathering resulting from
compelling reporters to disclose confidential information outweighs any public
interest in obtaining the information.”

The Court acknowledged that newsgathering did qualify for First Amendment
protection, adding that “without some protection for seeking out the news,
freedom of the press could be eviscerated.” However, the cases in question
“involve no intrusions upon speech or assembly, no prior restraint or
restriction on what the press may publish, and no express or implied command
that the press publish what it prefers to withhold.” The justices wrote, “The
sole issue before us is the obligation of reporters to respond to grand jury
subpoenas as other citizens do and to answer questions relevant to an
investigation into the commission of crime.”

Average citizens enjoy no constitutional protection from appearing before a
grand jury and disclosing information received in confidence the Court said, and
reporters should not be exempt, either.

The reasoning behind the reporters’ argument is clear: If reporters are
forced to respond to subpoenas and identify their sources or disclose other
confidences, their informants will refuse, or will be reluctant, to furnish
newsworthy information in the future. The resulting chilling effect on sources
will diminish the flow of news. The Court answered that argument this way: “From
the beginning of our country the press has operated without constitutional
protection for press informants, and the press has flourished. The existing
constitutional rules have not been a serious obstacle to either the development
or retention of confidential news sources by the press.”

The Court then said the First Amendment does not invalidate every law that
may impose a burden on the press, and emphasized that newspapers have no special
immunity from the application of general laws. The justices gave examples of
other instances and cases in which the enforcement of laws hampered
newsgathering. “It is thus not surprising that the great weight of authority is
that newsmen are not exempt from the normal duty of appearing before a grand
jury and answering questions relevant to a criminal investigation,” the opinion

The Court delivered what seems to be a definitive statement on the issue of
reporters’ privilege:

“A number of States have provided newsmen a statutory privilege of
varying breadth, but the majority have not done so, and none has been provided
by federal statute. Until now the only testimonial privilege for unofficial
witnesses that is rooted in the Federal Constitution is the Fifth Amendment
privilege against compelled self-incrimination. We are asked to create another
by interpreting the First Amendment to grant newsmen a testimonial privilege
that other citizens do not enjoy. This we decline to do…we perceive no basis for
holding that the public interest in law enforcement and in ensuring effective
grand jury proceedings is insufficient to override the consequential, but
uncertain, burden on news gathering that is said to result from insisting that
reporters, like other citizens, respond to relevant questions put to them in the
course of a valid grand jury investigation or criminal trial.”

However, the Court ended the majority opinion with a qualification of its
ruling, providing a small amount of “wiggle room” for proponents of reporter’s
privilege: “News gathering is not without its First Amendment protections, and
grand jury investigations if instituted or conducted other than in good faith,
would pose wholly different issues for resolution under the First Amendment.
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

Justice Powell, in his concurring opinion, which was described by one
observer as a concurrence that turned into a dissent, provided a little more
wiggle room as to the existence of a reporters’ privilege when he wrote:

“As indicated in the concluding portion of the opinion, the Court
states that no harassment of newsmen will be tolerated. If a newsman believes
that the grand jury investigation is not being conducted in good faith he is not
without remedy. 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. The balance of these vital
constitutional and societal interests on a case-by-case basis accords with the
tried and traditional way of adjudicating such questions.”

Four justices dissented, arguing that a reporter should be protected from
testifying by the First Amendment. Justice Potter Stewart outlined a “balancing
test” to be used when a reporter is asked to appear before a grand jury and
reveal confidences. “I would hold that the government must (1) show that there
is probable cause to believe that the newsman has information that is clearly
relevant to a specific probable violation of law; (2) demonstrate that the
information sought cannot be obtained by alternative means less destructive of
First Amendment rights; and (3) demonstrate a compelling and overriding interest
in the information.”

How the circuits have interpreted Branzburg
Despite what
seems to be a ruling that no reporters’ privilege exists, most of the circuit
courts have acknowledged a qualified privilege. There is little agreement on the
extent of the privilege, however.

The rulings in some circuits slant toward an absolute privilege, while some
hold that a privilege exists only when a subpoena is issued in bad faith. Even
within the circuits there are distinctions. In criminal cases there is an
inclination toward disclosure; in civil cases nondisclosure is favored. The type
of information sought also plays a role. Generally, information given with a
promise of confidentiality receives greater First Amendment protection. In
addition, most of the circuits apply Justice Stewart’s three-part balancing test
or a variation of it.

Circuits where privilege is recognized: cases, excerpts

1st Circuit
Recognizes a qualified privilege. The 1st
Circuit requires the party seeking information to satisfy all conditions of a
balancing test based on the test outlined by Justice Stewart.

  • United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir.
    1988) – “Courts faced with enforcing requests for the discovery of materials
    used in the preparation of journalistic reports should be aware of the
    possibility that the unlimited or unthinking allowance of such requests will
    impinge upon First Amendment rights.”

    “We discern a lurking and subtle threat to journalists and their employers if
    disclosure of outtakes, notes, and other unused information, even if
    nonconfidential, becomes routine and casually, if not cavalierly, compelled.”
    (LaRouche was a criminal case in which the defendant subpoenaed the
    outtakes of a television interview with an important government witness. The
    court found that the outtakes did not involve confidential information but that,
    because “First Amendment interests” were implicated even with respect to
    nonconfidential information, the disclosure should not be “routinely,”
    “casually” or “cavalierly” compelled. Nevertheless, the court found that those
    interests were outweighed by the defendant's Fifth Amendment right to a fair
    trial and Sixth Amendment right to confront and effectively cross examine
    adverse witnesses. Consequently it upheld the district court's denial of a
    motion to quash the subpoena. In re Special Proceedings, 291 F. Supp. 2d
    44, 54 (D.R.I. 2003))

  • More recent: In re Special Proceedings, 373 F.3d 37, 45 (1st Cir.
    2004) – (Case involving Rhode Island TV reporter James Taricani.) “The three
    leading cases in this circuit require 'heightened sensitivity' to First
    Amendment concerns and invite a 'balancing' of considerations (at least in
    situations distinct from Branzburg). [Cusumano v. Microsoft
    ] 162 F.3d 708 (1st Cir. 1998) at 716 at 716-17; LaRouche, 841
    F.2d at 1182-83; [Bruno & Stillman, Inc. v. Globe Newspaper, Co.,]
    633 F.2d 583 (1st Cir. 1980) at 596-99. In substance, these cases suggest that
    the disclosure of a reporter's confidential sources may not be compelled unless
    directly relevant to a nonfrivolous claim or inquiry undertaken in good faith;
    and disclosure may be denied where the same information is readily available
    from a less sensitive source.”

    2nd Circuit
    Recognizes a fairly broad qualified privilege.
    The 2nd Circuit requires the party seeking information to satisfy all conditions
    of the balancing test.

  • Von Bulow v. von Bulow, 811 F.2d 136, 142 (2nd Cir. 1987) – The court
    cited its decision in a 1972 civil case: “We held that the public interest in
    non-disclosure of a journalist's confidential sources outweighed the public and
    private interest in compelled testimony. Central to our analysis in Baker
    was our concern that “the deterrent effect such disclosure is likely to have
    upon future 'undercover' investigative reporting … threatens freedom of the
    press and the public's need to be informed.’”

  • More recent: Gonzales v. NBC, 194 F.3d 29, 35 (2nd Cir. 1998) –
    “There were also broader concerns undergirding the qualified privilege for
    journalists — such as the pivotal function of reporters to collect information
    for public dissemination, and the paramount public interest in the maintenance
    of a vigorous, aggressive and independent press capable of participating in
    robust, unfettered debate over controversial matters. For these reasons, we
    reaffirm that the qualified privilege for journalists applies to
    nonconfidential, as well as to confidential, information.”

  • New York Times Co. v. Gonzales, 04 Civ. 7677 (2nd Cir. 2005) – (Case
    involving telephone records of reporters Judith Miller and Philip Shenon.)
    “Based upon the Second Circuit's interpretation of Branzburg in the cases
    just described, district courts in this circuit have recognized the existence of
    a qualified reporter's privilege derived from the First Amendment. In view of
    the foregoing, it is concluded that the Second Circuit, based on
    Branzburg, has recognized a qualified First Amendment privilege,
    applicable in civil actions and in all phases of a criminal prosecution, that
    protects reporters from compelled disclosure of confidential sources. Pursuant
    to this qualified privilege, the party seeking disclosure must make ‘a clear and
    specific showing that the sought information is: [1] highly material and
    relevant, [2] necessary or critical to the maintenance of the claim, and [3] not
    obtainable from other available sources.’”

    3rd Circuit
    Recognizes a fairly broad qualified privilege.
    The 3rd Circuit requires the party seeking information to satisfy all conditions
    of the balancing test.

  • United States v. Criden, 633 F.2d 346, 356-357 (3d Cir. 1980) –
    “Extremely impressive pragmatic reasons, as well as conceptually abstract a
    priori principles, underlie the precept that a journalist does in fact possess a
    privilege that is deeply rooted in the first amendment. When no countervailing
    constitutional concerns are at stake, it can be said that the privilege is
    absolute; when constitutional precepts collide, the absolute gives way to the
    qualified and a balancing process comes into play to determine its limits … .
    The journalists' privilege therefore must be considered in the context of
    Supreme Court teachings that there is no absolute right for a newsman to refuse
    to answer relevant and material questions asked during a criminal proceeding.”

  • In re Madden, 151 F.3d 125, 128-29 (3d Cir. 1998) – “We have
    recognized that when a journalist, in the course of gathering the news, acquires
    facts that become a target of discovery, a qualified privilege against compelled
    disclosure appertains. Riley v. City of Chester, 612 F.2d 708 (3rd Cir.
    1979) (journalists' privilege for civil cases); United States v.
    630 F.2d 139 (3rd Cir. 1980) (journalists' privilege for
    criminal cases). Premised upon the First Amendment, the privilege recognizes
    society's interest in protecting the integrity of the newsgathering process, and
    in ensuring the free flow of information to the public. It is an interest of
    sufficient legal importance to justify some incidental sacrifice of sources of
    facts needed in the administration of justice…we have determined that a
    journalist's privilege exists.”

  • Lower court rulings within 3rd Circuit: In re: Subpoena Directed to
    27 Media L. Rep. 1500 (E.D. Pa. 1999) – “It is well established
    that members of the press enjoy a qualified First Amendment privilege which
    limits disclosure of confidential sources, resource materials, unpublished
    material … the Third Circuit Court of Appeals established a three prong test
    which must be met before a party may compel a journalist to disclose privileged

    4th Circuit
    Recognizes a qualified privilege, but only under
    certain conditions. In the 4th Circuit there must be evidence of governmental
    harassment or “bad faith,” or a promise of confidentiality.

  • In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) – “We hold that the
    incidental burden on the freedom of the press in the circumstances of this case
    does not require the invalidation of the subpoenas issued to the reporters, and
    absent evidence of governmental harassment or bad faith, the reporters have no
    privilege different from that of any other citizen not to testify about
    knowledge relevant to a criminal prosecution.”

  • Lower court rulings within 4th Circuit: United States v. King, 194
    F.R.D. 569, 584 (E.D. Vir. 2000) – “In sum, a survey of the decisions in this
    circuit teaches that our Court of Appeals has recognized that Branzburg
    does not create a reportorial privilege, but that it entitles reporters to
    protection under certain circumstances.”

  • United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D Vir. 2002) –
    “Today, a First Amendment journalist privilege is properly asserted in this
    circuit where the journalist produces some evidence of confidentiality or
    governmental harassment. Only where such evidence exists may district courts
    then proceed to strike a balance in the circumstances between the competing
    interests involved, namely “freedom of the press and the obligation of all
    citizens to give relevant testimony with respect to criminal conduct.”

    5th Circuit
    Recognizes a qualified privilege in civil cases
    and requires the party seeking information to satisfy all conditions of a
    balancing test. The 5th Circuit allows for privilege in criminal cases only when
    there is evidence of government intrusion.

  • United States v. Smith, 135 F.3d 963, 969 & 971-972 (5th Cir.
    1998) – “Although some courts have taken from Justice Powell's concurrence a
    mandate to construct a broad, qualified newsreporter’s privilege in criminal
    cases, we decline to do so. Justice Powell's separate writing only emphasizes
    that at a certain point, the First Amendment must protect the press from
    government intrusion. To Justice Powell, however, that point occurs only when
    the ‘grand jury investigation is not being conducted in good faith.’

    “In Miller v. Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980),
    cert. denied, 450 U.S. 1041, (1981), we held that in civil libel suits,
    reporters possess a qualified privilege not to disclose the identity of
    confidential informants. To defeat this privilege, the discoverer must show
    that: 1) the information is relevant; 2) it cannot be obtained by alternative
    means; and 3) there is a compelling interest in the information. Miller
    concluded that this privilege was justified because the balance of interests
    favored the press in civil libel cases, unlike the grand jury proceedings
    considered in Branzburg.” Later in the opinion the court writes, “We
    conclude that newsreporters enjoy no qualified privilege not to disclose
    nonconfidential information in criminal cases.”

  • In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983) – “We have
    recognized that the first amendment shields a reporter from being required to
    disclose the identity of persons who have imparted information to him in
    confidence. Miller v. Transamerican Press, 621 F.2d 721 (5th Cir.) Our
    course was dictated by our careful reading of the plurality and concurring
    opinions in Branzburg v. Hayes. The privilege, we held, is not absolute,
    but qualified.”

    9th Circuit
    Recognizes a fairly broad qualified privilege.
    The 9th Circuit requires the party seeking information to satisfy all conditions
    of a balancing test developed in this circuit.

  • Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) – “When facts
    acquired by a journalist in the course of gathering the news become the target
    of discovery, a qualified privilege against compelled disclosure comes into
    play. In Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975), cert.
    denied, 427 U.S. 912, 49 L. Ed. 2d 1203, 96 S. Ct. 3200 (1976), we interpreted
    Branzburg v. Hayes as establishing such a qualified privilege for
    journalists. Eight of the other nine circuits that have decided the question
    read Branzburg the same way.”

  • In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir. 1993) –
    “Read together with the majority opinion, with which Justice Powell concurred,
    [Powell’s concurring opinion] must be understood to mean that where a grand jury
    inquiry is not conducted in good faith, or where the inquiry does not involve a
    legitimate need of law enforcement, or has only a remote and tenuous
    relationship to the subject of the investigation then, the balance of interests
    struck by the Branzburg majority may not be controlling. The balancing of
    interests suggested by Justice Powell is in the limited circumstances he
    mentioned, where there is, in effect, an abuse of the grand jury function. If
    Justice Powell's concurrence is read more broadly, it would be inconsistent with
    Justice White's opinion with which he concurred. The Sixth Circuit has reached a
    similar conclusion. See Storer Communication, Inc. v. Giovan (rejecting
    claim that Justice Powell's concurrence creates a reporter's privilege or
    sanctions a rebalancing of interests absent questions of good faith, press
    harassment, or lacking relevance to a legitimate law enforcement need). This
    view is supported by our own post-Branzburg decisions, In re
    501 F.2d 418 (9th Cir. 1974), cert. denied, 420 U.S. 913, 43 L. Ed.
    2d 386, 95 S. Ct. 1106 (1975) and In re Lewis, 517 F.2d 236 (9th Cir.

  • Lower court rulings within 9th Circuit: Condit v. Nat'l Enquirer,
    289 F. Supp. 2d 1175, 1177-78 (E.D. Cal. 2003) – “In the seminal case
    of Branzburg v. Hayes, the Supreme Court held that the First Amendment
    protects the right of the press to gather news and information. The Ninth
    Circuit has interpreted Branzburg, as establishing a qualified privilege
    for journalists against compelled disclosure of information gathered in the
    course of their work … . Similarly, under Article 1, [Section] 2 of the
    California Constitution, California protects the reporter's confidential
    sources. A reporter, editor or publisher may have a constitutional privilege to
    withhold both his or her sources and unpublished information obtained from such
    sources in civil litigation. This privilege is designed to protect investigative
    reporting, and is based on the “free press” guarantees of the First Amendment
    and correlative provisions of the California Constitution … . Here, the
    parties agree that the determination of the privilege is a case-by-case
    evaluation based on certain factors.”

  • Crowe v. County of San Diego, 242 F. Supp. 2d 740, 750 (S.D. Cal.
    2003) – “In Shoen I, the Ninth Circuit affirmed its previous holding in
    Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S.
    912, 49 L. Ed. 2d 1203, 96 S. Ct. 3200 (1976), that federal law provides
    journalists with a qualified journalists privilege … . This privilege is
    qualified and not absolute, and ‘the process of deciding whether the privilege
    is overcome requires that “the claimed First Amendment privilege and the
    opposing need for disclosure be judicially weighed in light of the surrounding
    facts, and a balance struck to determine where lies the paramount interest.”’”

    10th Circuit
    Recognizes a fairly broad qualified privilege
    in civil cases. The 10th Circuit requires the party seeking information to
    satisfy all conditions of a four-part balancing test. This circuit has not ruled
    on the privilege in a criminal case.

  • Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977) –
    “The (Supreme) Court's discussion in both the majority opinion of Justice White
    and the concurring opinion of Justice Powell recognizing a privilege which
    protects information given in confidence to a reporter is important. The
    Court said that the First Amendment occupies a preferred position in the Bill of
    Rights. It was then careful to point out that any infringement of the First
    Amendment must be held to a minimum — that it is to be no more extensive than
    the necessities of the case. The scope and breadth of the protection is fully
    discussed. (At 681-82 in Branzburg)

    “The majority also makes clear that it is not requiring the press to publish
    its sources of information or indiscriminately to disclose them on request. From
    this discussion we infer that the present privilege is no longer in doubt. In
    holding that a reporter must respond to a subpoena, the Court is merely saying
    that he must appear and testify. He may, however, claim his privilege in
    relationship to particular questions which probe his sources.”

  • Lower court rulings within 10th Circuit: United States v. Foote, 30
    Media L. Rep. 2469, (D. Kan. 2002) – “The Supreme Court in Branzburg v.
    expressly recognized that reporter's newsgathering activities qualify
    for First Amendment protection. While a five-to-four majority of the Court held
    that, in the context of a grand jury investigation into the commission of a
    crime, reporters had an obligation to respond to grand jury subpoenas and to
    answer relevant questions, the limited scope of this holding was carefully
    emphasized … . Moreover, as Judge Merhige observed in Gilbert v. Allied
    Chemical Corp.,
    if one aligns Justice Powell's concurring opinion with
    Justice Stewart's dissent, joined by Justices Brennan and Marshall, and with
    Justice Douglas's dissent, a majority of five justices accepted the proposition
    that journalists are entitled to at least a qualified First Amendment privilege.

    “Following Branzburg, the Tenth Circuit also recognized a qualified
    federal common law journalists privilege [in Silkwood] … . Although
    Silkwood was decided in the context of civil litigation, the Court sees
    no legally-principled reason for drawing a distinction between civil and
    criminal cases when considering whether the reporter's interest in
    confidentiality should yield to the moving party's need for probative evidence.
    Indeed, the important social interests in the free flow of information that are
    protected by the reporter's qualified privilege are particularly compelling in
    criminal cases. Reporters are to be encouraged to investigate and expose, free
    from unnecessary government intrusion, evidence of criminal wrongdoing.

    Silkwood was concerned with the reporter's privilege in protecting
    its confidential information. Here, Espinoza seeks to protect nonconfidential
    information.” (Note: Espinosa was a reporter whom the government subpoenaed. He
    was not a party to the lawsuit but wrote articles in which he attributed
    numerous statements to the defendant, Foote. The government maintained that in
    order to introduce those statements at trial, they needed Espinosa to confirm
    that the defendant was in fact the person quoted in the article.) “The Court is
    persuaded, however, that nonconfidential information gathered by a reporter or
    other journalist is entitled to privilege as well; thus, the Court will proceed
    to apply the balancing test factors to the circumstances presented.”

    11th Circuit
    Recognizes a qualified privilege. The 11th
    Circuit requires the party seeking information to satisfy all conditions of a
    balancing test.

  • United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) –
    “The standard governing the exercise of reporter's privilege as articulated in
    Miller v. Tranamerican Press, Inc. (5th Cir. 1980) provides that
    information may only be compelled from a reporter claiming privilege if the
    party requesting the information can show that it is highly relevant, necessary
    to the proper presentation of the case, and unavailable from other sources.”

  • Lower court rulings within 11th Circuit – United States v. Diaz, 32
    Media L. Rep. 1794 (S.D. Fla. 2004) – “Federal courts, including the
    Eleventh Circuit, have ‘overwhelmingly recognized a qualified privilege for
    journalists which allows them to resist compelled disclosure of their
    professional news gathering efforts and results, whether published or not.’
    McCarty v. Bankers Insurance Co., 195 F.R.D. 39, 44 (N.D. Fla. 1998).
    This reporter's privilege stems from the adverse effect of forcing journalists
    to testify in judicial proceedings about the substance of their news reports.
    See United States v. Diaz (reporter’s subpoenas quashed where defendants
    failed to show alternative sources of information did not exist or that
    reporters had information relevant to the defense); Miller v. Transamerican
    Press, Inc.
    (formally adopting reporter's privilege enunciated by other
    circuits). The privilege may be overcome only if the information sought is shown
    to be: (a) highly relevant; (b) necessary to the proper presentation of the
    case; and (c) unavailable from other sources. The party seeking to compel a
    reporter's testimony must establish all three prongs by clear and convincing

    D.C. Circuit
    Recognizes a qualified privilege in civil
    cases. Privilege in criminal cases is limited to cases where there is evidence
    of governmental harassment. There is no privilege in grand jury investigations.
    In civil cases the D.C. Circuit requires the party seeking information to
    satisfy all conditions of a balancing test.

  • Zerilli v. Smith, 656 F.2d 705, 711 (D.C.C. 1981) – “[In Branzburg
    v. Hayes
    the Supreme Court] recognized … that because news gathering is
    essential to a free press, it deserves some First Amendment protection. Thus the
    Court indicated that a qualified privilege would be available in some
    circumstances even where a reporter is called before a grand jury to testify.
    Moreover, Justice Powell, who cast the deciding vote in Branzburg, wrote
    a concurring opinion in which he stated that courts can determine whether a
    privilege applies by using a balancing test … . Although Branzburg may
    limit the scope of the reporter's First Amendment privilege in criminal
    proceedings, this circuit has previously held that in civil cases, where
    the public interest in effective criminal law enforcement is absent, that case
    is not controlling.”

  • More recent D.C. Circuit: Hutira v. Islamic Republic of Iran, 211
    F.Supp.2d 115, 118 (D.C.C. 2002) – “Courts have recognized that the First
    Amendment provides journalists with a qualified privilege against compelled
    disclosure of information obtained through their news gathering activities. See,
    e.g., Zerilli v. Smith (noting that ‘the Supreme Court [has] explicitly
    acknowledged the existence of First Amendment protection for news gathering’
    activities.); Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631, 636
    (D.C. Cir. 1972) (same). ‘Rooted in the First Amendment, the privilege is a
    recognition that society's interest in protecting the integrity of the
    newsgathering process, and in ensuring the free flow of information to the
    public, is an interest of sufficient social importance to justify some
    incidental sacrifice of sources of facts needed in the administration of
    justice.’ Shoen v. Shoen (9th Cir. 1993) See also Zerilli, 656
    F.2d at 711 (noting that ‘without an unfettered press, citizens would be far
    less able to make informed political, social, and economic choices’). The
    privilege is not absolute, however, and may be abrogated upon a sufficient
    showing by the party seeking the information.

    “In determining whether the privilege applies in a civil action, the
    court must look to the facts of the particular case, balancing ‘the public
    interest in protecting the reporter's sources against the private interest in
    compelling disclosure.’ ” The D.C. Circuit also noted: “The applicability of the
    privilege in criminal cases is governed by Branzburg v. Hayes.

  • In re Grand Jury Subpoena (Miller), 397 F.3d 964, 968-972 (D.C.C.
    2005) (Involves New York Times reporter Judith Miller and the Valerie
    Plame matter) – “In his opinion below, the Chief District Judge held that ‘a
    reporter called to testify before a grand jury regarding confidential
    information enjoys no First Amendment protection.’ In Re Special Counsel
    332 F. Supp. 2d 26, 31 (D.D.C. 2004). Appellants argue that
    ‘this proposition of law is flatly contrary to the great weight of authority in
    this and other circuits.’ Appellants are wrong. The governing authority in this
    case, as the District Court correctly held, comes not from this or any other
    circuit, but the Supreme Court of the United States. In Branzburg v.
    the Highest Court considered and rejected the same claim of First
    Amendment privilege on facts materially indistinguishable from those at bar …
    . The Supreme Court in no uncertain terms rejected the existence of such a
    privilege. As we said at the outset of this discussion, the Supreme Court has
    already decided the First Amendment issue before us today. “Zerilli
    cannot possibly help appellants … the Zerilli Court expressly
    distinguished its case from Branzburg … . Zerilli has no force in the
    present case. Even if Zerilli states the law applicable to civil cases,
    this is not a civil case. Zerilli could not subtract from the Supreme
    Court's holding in Branzburg. Zerilli, along with several other lower
    court decisions cited by appellants, may recognize or at least suggest the
    possibility of privileges under various circumstances. None of them can change
    the law applicable to grand juries as set forth in Branzburg.

    Circuits where privilege is not recognized

    6th Circuit
    Does not recognize a reporter’s privilege.

  • Storer Communs. Inc. v. Giovan (In re Grand Jury Proceedings), 810
    F.2d 580, 583-584 (6th Cir. 1987) – “In contending that, as a news reporter, he
    was entitled to assert a ‘privilege grounded in the First Amendment,’ Stone (the
    appellant, a reporter for Storer Communications) would have us restructure the
    holding of the Supreme Court in Branzburg v. Hayes since the majority
    opinion in that case rejected the existence of such a first amendment
    testimonial privilege … . Stone insists, however, that when his reading of
    Justice Powell's concurring opinion is superimposed upon Justice White's
    majority decision, the government is required to make ‘a clear and convincing
    showing of relevancy, essentiality, and exhaustion of non-media sources’ for
    obtaining the information before he can be compelled to testify. In arguing that
    this amounts to a ‘qualified privilege,’ Stone relies heavily upon the
    dissenting opinion of three justices in Branzburg, and upon opinions from
    other circuit courts.

    “Because we conclude that acceptance of the position urged upon us by Stone
    would be tantamount to our substituting, as the holding of Branzburg, the
    dissent written by Justice Stewart (joined by Justices Brennan and Marshall) for
    the majority opinion, we must reject that position.”

  • Lower court rulings within 6th Circuit: In re DaimlerChrysler AG Secs.
    216 F.R.D. 395, 401 (E.D. Mich., 2003) – “In reaching its decision
    in Grand Jury Proceedings, the Sixth Circuit undertook a detailed
    analysis of Branzburg, and concluded that the very test proposed by
    Respondents in the present case — that reporters have a qualified First
    Amendment privilege which can be overcome only if the party seeking the
    information meets some balancing test — was without support in either Justice
    White's majority opinion or Justice Powell's concurrence. Rather, the Sixth
    Circuit found that the only support for the qualified privilege/balancing
    approach was in Justice Stewart's dissent, which was rejected by the majority.
    Furthermore, in reaching its conclusions, the Court in Grand Jury
    explicitly rejected the reasoning and the holding of the very
    cases from other Circuits on which the Respondents rely in the present case,
    including Zerilli v. Smith, United States v. Burke, and United States
    v. Cuthbertson.
    The Sixth Circuit's analysis was not a mere passing comment,
    but central to its ultimate decision. Its statement that Branzburg did
    not create any qualified privilege was categorical, not ruminative.

    “Therefore, however cogent and persuasive I may find the reasoning of cases
    such as Southwell and Zerilli, I am constrained by Sixth Circuit
    precedent to find that Respondents are not constitutionally shielded by a First
    Amendment privilege, qualified or otherwise.”

    7th Circuit
    This circuit has not “taken sides” regarding
    reporters’ privilege. Reading the 7th Circuit opinions, however, one could
    easily assume that this court does not recognize the privilege.

  • McKevitt v. Pallasch, 339 F.3d 530, 531-532 (7th Cir. 2003) – “The
    defendants claim that the tapes in question are protected from compelled
    disclosure by a federal common law reporter's privilege rooted in the First
    Amendment. Although the Supreme Court in Branzburg v. Hayes declined to
    recognize such a privilege, Justice Powell, whose vote was essential to the 5-4
    decision rejecting the claim of privilege, stated in a concurring opinion that
    such a claim should be decided on a case-by-case basis by balancing the freedom
    of the press against the obligation to assist in criminal proceedings. Since the
    dissenting Justices would have gone further than Justice Powell in recognition
    of the reporter's privilege, and preferred his position to that of the majority
    opinion (for they said that his ‘enigmatic concurring opinion gives some hope of
    a more flexible view in the future,’), maybe his opinion should be taken to
    state the view of the majority of the Justices — though this is uncertain,
    because Justice Powell purported to join Justice White's ‘majority’ opinion.

    “A large number of cases conclude, rather surprisingly in light of
    Branzburg, that there is a reporter's privilege, though they do not agree
    on its scope. A few cases refuse to recognize the privilege, at least in cases,
    which Branzburg was but this case is not, that involve grand jury
    inquiries. Our court has not taken sides.

    “Some of the cases that recognize the privilege, such as Madden, essentially
    ignore Branzburg; some treat the ‘majority’ opinion in Branzburg
    as actually just a plurality opinion, such as Smith; some audaciously
    declare that Branzburg actually created a reporter's privilege, such as
    Shoen, 5 F.3d at 1292, and von Bulow.

  • Lower court rulings within 7th Circuit: Patterson v. Burge, Case No.
    03 C 4433 (N.D. Ill. 2005) – “The Seventh Circuit stated that it could find no
    basis, in law or fact, for recognizing a reporter's privilege under federal or
    state law cognizable in federal proceedings. Rather, it stated that instead of
    invoking a privilege, ‘courts should simply make sure that a subpoena duces
    tecum directed to the media, like any other subpoena duces tecum, is reasonable
    in the circumstances.’”

  • Solaia Tech. v. Rockwell Automation Inc., 31 Media L. Rep.
    2518, (N.D.Ill. 2003) – “With respect to Specialty's claim that disclosure is
    protected under federal privilege law rooted in the first Amendment, this issue
    was also addressed in McKevitt. The Seventh Circuit stated that, ‘It
    seems to us that rather than speaking of privilege, courts should simply make
    sure that a subpoena duces tecum directed to the media, like any other subpoena
    duces tecum, is reasonable in the circumstances, which is the general criterion
    for judicial review of subpoenas.’

    The court further explained that ‘when the information in the reporter's
    possession does not come from a confidential source, it is difficult to see what
    possible bearing the First Amendment could have on the question of compelled

    Circuit where privilege question is open

    8th Circuit
    The question of reporters’ privilege is open in
    this circuit. Some districts in the 8th Circuit have recognized a qualified
    reporter’s privilege.

  • Cervantes v. Time, Inc., 464 F.2d 986, 992-93 (8th Cir. 1972) – “We
    are aware of the prior cases holding that the First Amendment does not grant to
    reporters a testimonial privilege to withhold news sources. But to routinely
    grant motions seeking compulsory disclosure of anonymous news sources without
    first inquiring into the substance of a libel allegation would utterly
    emasculate the fundamental principles that underlay the line of cases
    articulating the constitutional restrictions to be engrafted upon the
    enforcement of State libel laws.* Such a course would also overlook the basic
    philosophy at the heart of the summary judgment doctrine.
    * Indeed, as the
    (Supreme) Court observed in Caldwell, “without some protection for
    seeking out the news, freedom of the press could be eviscerated.” Similarly, to
    compel a newsman to breach a confidential relationship merely because a libel
    suit has been filed against him would seem inevitably to lead to an excessive
    restraint on the scope of legitimate newsgathering activity.”

  • In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir.
    1997) – “Some courts have interpreted Branzburg as establishing a
    qualified news reporter's privilege. See Shoen v. Shoen (9th Cir. 1993.)
    But see In re Grand Jury Proceedings (Storer), 810 F.2d 580, 583-86 (6th
    Cir. 1987) (rejecting this theory). Although the Ninth Circuit in Shoen
    cited our opinion in Cervantes for support, we believe this question is
    an open one in this Circuit.”

  • Lower court rulings within 8th Circuit: Continental Cablevision, Inc. v.
    Storer Broadcasting Co.,
    583 F. Supp. 427, 435 (E.D. Mo. 1984) – “In sum,
    this Court holds that news reporters enjoy a qualified privilege, derived from
    the first amendment guarantee of a free press, to withhold from discovery in a
    civil case confidential or non-confidential sources, materials, or other
    information where such discovery would impinge on the ability of the media to
    gather and disseminate news. Said privilege may be defeated in a particular case
    where the party seeking discovery can demonstrate that the testimony, material
    or information sought is relevant enough, and otherwise unavailable, to outweigh
    the first amendment interest of the media. A balancing analysis is the

  • Weinberger v. Maplewood Review, 648 N.W.2d 249, 254-255 (Minn. App.
    2002) – “The Supreme Court has recognized that newsgathering is essential to a
    free press and deserves some First Amendment protection. In the civil context,
    federal circuit courts have ruled that a qualified reporter's privilege under
    the First Amendment should be readily available and that a balancing test should
    be applied. The protections of a reporter's privilege are the same under the
    Minnesota and federal constitutions.”

  • United States v. Hively, 202 F. Supp. 2d 886, 892 (E.D. Ark. 2002) –
    “Whether Branzburg establishes a qualified news reporter's privilege is
    an open issue in this Circuit, as the Eighth Circuit Court of Appeals has
    specifically noted. On the specific facts of this case and in the absence of any
    showing that this information is sought in bad faith or for purposes of
    harassment, this Court declines to recognize any constitutional privilege
    concerning the nonconfidential testimony sought by the defense.”

  • Richardson v. Sugg, 220 F.R.D. 343, 346 (E.D. Ark. 2004) – “It is an
    open question in the Eighth Circuit whether there is a qualified reporter's
    privilege in either civil or criminal cases.

    “Although some courts have refused to recognize or have limited the scope of
    the qualified reporter's privilege in grand jury or criminal proceedings, in
    civil proceedings, where the public interest in effective criminal law
    enforcement is absent, courts have generally made the privilege readily
    available. E.g. Zerilli, 656 F.2d at 711-12; Continental
    583 F. Supp. at 433-34. In civil cases, the qualified
    reporter's privilege shields both confidential and nonconfidential information.
    Gonzales v. National Broadcasting Co., 194 F.3d 29, 35-36 (2nd Cir.

    “The Magistrate Judge finds that this Court should recognize, in accordance
    with the weight of authority, a First Amendment qualified reporter's privilege
    in civil cases against compelled disclosure of the identity of the reporter's
    confidential sources and of information, both confidential and nonconfidential,
    gathered by the reporter in the news gathering process.”