Reporter's Privilege: Unresolved
Douglas Lee, Esq.
the U.S. Supreme Court on April 15 announced the cases it had most
recently accepted, it was difficult to determine which was more
surprising that Victor Moseleys sex shop will get its
day in the U.S. Supreme Court or that Vanessa Leggett wont
decisions to hear Moseleys case and not Leggetts, of
course, are not related, but the Courts acceptance of the
sex shop case rubbed salt in the wounds of those disappointed by
the Courts rejection of Leggetts appeal. Not only did
the Court refuse the opportunity to articulate a qualified news
gatherers privilege, we said, it decided instead to determine
whether Moseley violated Victorias Secrets trademark
when he named his small Kentucky shop "Victors Little
a result of the Courts decisions, we sometime next year will
learn whether Victorias Secrets image as a marketer
of lingerie is tarnished by a similarly named purveyor of lingerie
and adult toys. What we wont learn is whether the First Amendment
protects news gatherers from revealing their confidential sources
and other unpublished information.
battle with the government began in November 2000, after she had
spent four years obtaining tape-recorded interviews for her book
on the murder of Houston socialite Doris Angleton, many from confidential
sources. Aware of the interviews, FBI agents tried to recruit Leggett
to join the investigative team as a paid confidential informant.
When she refused, she was immediately served with her first grand
providing non-confidential information to the grand jury in December
2000, Leggett was subpoenaed again six months later, this time to
surrender all of her original tape recordings, all copies of those
recordings and all transcripts prepared from those recordings. Although
the subpoena was unspecific and overbroad, the court did not require
the government to justify the subpoena in any way. Unwilling to
break her promises of confidentiality, Leggett was found in contempt
and spent the next 168 days in jail, not being released until the
grand jury expired.
her appeal to the U.S. Fifth Circuit Court of Appeals, Leggett relied
in large part on the qualified news gatherers privilege the
U.S. Supreme Court recognized in 1972 in Branzburg v. Hayes.
In Branzburg, the Courts nine justices agreed that
news gathering is entitled to First Amendment protection but fractured
over how much protection news gatherers should receive. As a result,
many federal trial and appellate courts have recognized the qualified
privilege crafted by Justice Powell in his concurrence in Branzburg
and have held that news gatherers can be required to disclose
confidential or unpublished information only if
sought is highly material and relevant to the case at issue,
need exists for the information and
cannot be obtained by other means.
the Fifth Circuit Court of Appeals is one of the few courts that
has refused to recognize this qualified privilege in criminal cases.
Instead, a writer in the Fifth Circuit can be compelled to reveal
confidential or unpublished information to a grand jury unless the
writer can prove governmental harassment or oppression. Because
Leggett could not satisfy this burden, the Fifth Circuit refused
to reverse the trial judges contempt order.
When the circuit
courts of appeal disagree about important constitutional rights,
the Supreme Court often will accept a case that will allow it to
resolve the disagreement. The Center for Individual Freedom, the
Reporters Committee for Freedom of the Press, the American Society
of Journalists and Authors, the National Writers Union and the Association
of Alternative Newsweeklies all urged the Court to accept Leggetts
case and to clearly articulate the existence and scope of the qualified
privilege. The government, however, resisted, arguing that the case
was moot because Leggett no longer was incarcerated and that, even
if it werent moot, Branzburg cannot be read to create
a qualified privilege against testifying before grand juries.
Court does not announce why it refuses a case, lower courts cannot
read the rejection of Leggetts appeal as a rejection of the
qualified privilege. By refusing to hear the case, however, the
Court leaves writers subject to different and contradictory standards
depending upon where they gather and publish news.
standards are especially troubling in an era in which many reporters
work on a national stage, whether for coast-to-coast television,
books or the Internet. Does a news gatherer working in the First
Circuit or another circuit that recognizes the privilege lose the
privilege when she travels to Texas to interview a source? Can a
Texas grand jury break the seal of a confidential reporter-source
relationship created in the First Circuit? Is an e-mail privileged
if it is sent from a confidential source in Texas to a reporter
in the First Circuit? If sent from a source in the First Circuit
to a reporter in Texas? In refusing Leggetts appeal, the Court
left all of these questions unanswered.
of a clear national standard troubles more than First Amendment
lawyers and news organizations. It also troubles local reporters
and writers, who realize the cost and inconvenience of responding
to grand jury subpoenas and therefore steer clear of controversial
stories. It troubles potential sources of sensitive information,
who realize that aggressive prosecutors can require a writer to
break a promise of confidentiality. And it troubles those who realize
that, without the free flow of information to the public, a vigorous
democracy cannot be sustained.
well never know, the Court refused this opportunity to articulate
a clear national standard. The Court, we can hope, will accept the
next opportunity, whenever that arises. Until that time, however,
those of us troubled by the absence of a national qualified news
gatherers privilege must continue working in both the
courts and in Congress to establish one.
Lee is a partner in the Dixon, IL, law firm of Ehrmann Gehlbach
Badger & Lee. Mr. Lee writes frequently about First Amendment
issues and has handled several free press/free speech cases as a
part of his general litigation practice, including the Centers
amicus curiae brief in support of Vanessa Leggetts appeal
to the Supreme Court.
April 18, 2002]
to Current Events Index