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The Reporter's Privilege:  Unresolved

By Douglas Lee, Esq.

When 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 Moseley’s sex shop will get its day in the U.S. Supreme Court or that Vanessa Leggett won’t get hers.

The decisions to hear Moseley’s case and not Leggett’s, of course, are not related, but the Court’s acceptance of the sex shop case rubbed salt in the wounds of those disappointed by the Court’s rejection of Leggett’s appeal. Not only did the Court refuse the opportunity to articulate a qualified news gatherer’s privilege, we said, it decided instead to determine whether Moseley violated Victoria’s Secret’s trademark when he named his small Kentucky shop "Victor’s Little Secret."

As a result of the Court’s decisions, we sometime next year will learn whether Victoria’s Secret’s image as a marketer of lingerie is tarnished by a similarly named purveyor of lingerie and adult toys. What we won’t learn is whether the First Amendment protects news gatherers from revealing their confidential sources and other unpublished information.

Leggett’s 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 jury subpoena.

After 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.

In her appeal to the U.S. Fifth Circuit Court of Appeals, Leggett relied in large part on the qualified news gatherer’s privilege the U.S. Supreme Court recognized in 1972 in Branzburg v. Hayes. In Branzburg, the Court’s 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

  • the information sought is highly material and relevant to the case at issue,

  • a compelling need exists for the information and

  • the information cannot be obtained by other means.

Unfortunately, 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 judge’s 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 Leggett’s 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 weren’t moot, Branzburg cannot be read to create a qualified privilege against testifying before grand juries.

Because the Court does not announce why it refuses a case, lower courts cannot read the rejection of Leggett’s 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.

These different 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 Leggett’s appeal, the Court left all of these questions unanswered.

The absence 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.

For reasons we’ll 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 gatherer’s privilege must continue working — in both the courts and in Congress — to establish one.

Douglas 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 Center’s amicus curiae brief in support of Vanessa Leggett’s appeal to the Supreme Court.

[Posted April 18, 2002]

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