Newsgatherers may feel pinch of 7th Circuit’s ruling on privilege

Thursday, August 28, 2003

If the federal newsgatherers’ privilege against testifying fails to survive the decade, most news reporters will blame insensitive and prosecution-friendly judges. A few, however, might also blame book authors.

It’s hardly book authors’ fault, though, that two circuit courts of appeal in the last three years have used cases involving authors to reject the notion that a federal newsgatherers’ privilege exists. These decisions unfortunately leave all journalists and writers vulnerable to the long arms of subpoena-wielding prosecutors, defense attorneys and civil litigators, who not surprisingly are more interested in their clients’ causes than in the integrity of the First Amendment. As a result, authors and reporters wary of having their notes and other research displayed in open court may shy away from investigating controversial and important topics.

The central legal issue in these cases has been the authors’ argument that the U.S. Supreme Court recognized a news gatherers’ privilege in 1972 in Branzburg v. Hayes. In 2001, in In re Grand Jury Subpoenas, the 5th U.S. Circuit Court of Appeals rejected that claim. Author Vanessa Leggett thus was forced to spend 168 days in jail in order to protect her confidential sources. Earlier this month, the 7th Circuit also refused to recognize the privilege, holding in McKevitt v. Pallasch that Branzburg did not protect an author’s unpublished taped interviews.

Though both decisions offer a faint hope that the courts might someday recognize a limited privilege in some circumstances, it cannot be denied that newsgatherers in Texas, Mississippi, Louisiana, Illinois, Indiana and Wisconsin (states in the 5th and 7th circuits) now face long odds if they attempt to resist federal subpoenas seeking the identities of confidential sources and other unpublished information. As illustrated by McKevitt, these difficulties result from a cramped reading of Branzburg that ignores the special role newsgatherers play in our society.

Michael McKevitt is an alleged Irish Republican Army activist being tried in Ireland on charges of directing terrorism and belonging to a banned organization. One of the witnesses against him is David Rupert, a purported FBI informant with ties to the IRA. Several journalists writing a Rupert biography conducted and taped several interviews with Rupert during their research. Invoking a federal law, McKevitt asked an Illinois district court to compel the journalists to turn over the tapes. The authors refused, claiming Branzburg protected their unpublished material from disclosure. After the trial court rejected the journalists’ claim, the writers appealed to the 7th Circuit.

The 7th Circuit ruled 3-0 to affirm the trial court’s decision. Writing the opinion in the case, Judge Richard Posner first looked at Branzburg, in which the high court ruled 5-4 that, whatever the scope of First Amendment protection for newsgathering, it did not extend far enough to protect the journalists in that 1972 case. As Posner recognized, the decision in Branzburg is somewhat difficult to interpret because Justice Lewis Powell voted with the majority but wrote a concurring opinion that seemingly sided with the dissent. While other courts have found a newsgatherers’ privilege in this ambiguity, Posner refused to do so, concluding instead that Powell’s concurrence should be construed narrowly.

Posner then chipped away at the decisions of the federal appellate courts that have recognized a newsgatherers’ privilege. While forced to acknowledge that these decisions reflect the majority view, Posner nevertheless belittled them. Some of the rulings, he said, “essentially ignore” Branzburg. Others, he claimed, misread the case. And still others, he complained, “audaciously declare that Branzburg actually created a reporter’s privilege.” All of these decisions, Posner concluded, “can certainly be questioned.”

Even more dubious, Posner said, are the decisions from the four circuits that allow newsgatherers to protect nonconfidential, unpublished information from disclosure. Because the high court in Branzburg dealt only with confidential sources, he wrote, the appellate courts extending Branzburg to nonconfidential information “may be skating on thin ice.”

Unable to overrule the other circuit courts finding a privilege in Branzburg, Posner ultimately ignored them. Despite the fact that all of the high court justices in Branzburg agreed that newsgathering was entitled to at least some First Amendment protection, Posner concluded otherwise. “We do not see why,” he wrote, “there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”

While Posner might have struggled more with his decision had McKevitt involved confidential sources, the lack of confidentiality in the taped interviews made the case easy for him. In such cases, he said, “it is difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure.” Never mind that other courts long have recognized that compelling disclosure of nonconfidential information can be as disrupting and harassing as subpoenas for confidential sources and notes. The only reason writers want to protect unpublished information, according to Posner, is to protect the marketability and profitability of their material.

In Branzburg, Powell wrote that a court may compel a newsgatherer’s testimony only after striking, on a case-by-case basis, a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” The four dissenting justices in Branzburg — William O. Douglas, Potter Stewart, William Brennan and Thurgood Marshall — agreed newsgatherers were entitled to at least that much protection. If anyone’s reading of Branzburg is audacious, it is Judge Posner’s, which goes no further than the court’s fact-specific holding.

The 7th Circuit’s opinion notwithstanding, a majority of the federal circuits still recognize a newsgatherers’ privilege. From the news media’s perspective, however, it cannot be a good sign that the last two circuits to have considered the privilege have rejected it. Unfortunately, it appears the media can do little but hope that some federal court somewhere firmly reestablishes the strength and importance of the privilege. Until that time, newspaper reporters, broadcast journalists and, yes, even book authors likely will see more subpoenas.

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