Unpacking Government: What Legal Protections Do Reporters Have?

Mar 13, 2017

President Donald Trump does not always get along with the media.

The president tweeted last month that "the fake news" is the "enemy of the American people," listing the New York Times and CNN among others. Shortly after, he doubled down on those comments at this year's Conservative Political Action Conference and barred several news outlets from a White House press briefing.

The press is sometimes considered the fourth branch of government, providing additional checks and balances on the other three. That raises the question, what are the legal protections provided to reporters?

Freedom Of The Press

Unlike the branches of government, part of what makes the press free is that it is not easily defined.

"The news media in the United States is something that's never really been licensed," said Bruce Johnson, a media lawyer with Davis Wright Tremaine in Seattle, "because the First Amendment prohibits a licensing system."

Many of the free speech laws that keep the press running also apply to the general public.

Laws like the Freedom of Information Act or court decisions surrounding prior restraint — a legal term for censorship — aren't just for reporters. The same laws that allow a TV crew to film at a crime scene also protect citizens recording an encounter with police.

Reporter's Privilege

The one special consideration the law can make for journalists is called reporter's privilege. Similar to doctor-patient privilege or lawyer-client privilege, it protects reporters from subpoenas compelling them to testify, turn over their notes or reveal their sources in a court case.

"I think the largest misconception is that we have any standard body of federal First Amendment law dealing with journalists' privileges," Johnson said.

The laws that govern reporter's privilege are called reporter's shield laws. Thirty-nine states and the District of Columbia have shield laws on the books. Every state except Wyoming recognizes reporter's privilege either through statute or through case law.

Johnson was one of the architects of Washington state's reporter shield law, which passed in 2007. 

"Our shield law is probably one of the better ones in the sense that it provides absolute protection for confidential sources," Johnson said.

Shield laws vary in strength from state to state, but most are primarily concerned with the confidential source issue.

In Washington, if someone gives a reporter information and the reporter promises that person anonymity, then the reporter cannot be compelled to turn over the source's name, regardless of how pertinent the information is.

The state law also provides a "qualified" privilege for non-confidential materials. Those could include notes, outtakes, or other unpublished work.

The privilege is considered qualified because a reporter can be compelled to turn over those materials, but whoever is seeking that information has to prove that it's critical to their case and that they can't get it anywhere else.

The shield law only applies directly in Washington state. Reporters facing subpoenas in federal court aren't necessarily covered.

Different Bodies Of Case Law

While the U.S. Supreme Court has taken on several First Amendment cases involving the press, only one has addressed the issue of reporter's privilege head on.

In 1972, the court heard Branzburg v. Hayes regarding a journalist who refused to testify about drug crimes he had reported on in Kentucky. The court ruled that compelling the reporter to testify before a grand jury did not violate the First Amendment.

The problem with Branzburg is the decision came down 5-4 — a split decision with a total of four written opinions. Any precedent set by the case was not binding and up to each circuit court to interpret.

That was exactly the issue when Carolyn Nielsen was subpoenaed seven years ago.

Nielsen was already teaching journalism at Western Washington University when she was subpoenaed in 2010 for notes about a 15-year-old murder case she covered while she was a student in Chicago.

"It was really shocking to me," Nielsen said. "I can't say that I expected it at all."

Thaddeus "T.J." Jimenez was imprisoned for murder when he was 13.  Nielsen was already teaching in Washington when he was exonerated in 2009, in part because of her reporting.

"I was just feeling so happy that justice had been served," Nielsen said. "And then was myself served with this subpoena."

After he was exonerated, Jimenez sued the city of Chicago and the Chicago Police Department in federal court for violating his civil rights when he was a teenager. The city then filed a subpoena for Nielsen's notes and correspondence, which she resisted.

The problem was that most of the reporting had been done in Chicago, in the Seventh Circuit, which recognizes a very limited reporter's privilege.

But the subpoena was filed in the Ninth Circuit, where Nielsen was living and where the notes were kept. The Ninth Circuit has provided pretty robust protections for reporters.

"So one of the big questions in the case was whether Seventh Circuit law would apply or Ninth Circuit law would apply," Nielsen said.

A judge eventually sided with Nielsen, but the outcome could have been completely different if she had been living somewhere else.

The Branzburg decision means that two courts with equal authority can have two different, yet equally binding, bodies of case law.

A Federal Shield Statute

Both Nielsen and Johnson agree that a lot of confusion would be solved by a federal shield law.

There have been several attempts to pass such legislation. In fact, while he was a congressman, the current vice president sponsored three media shield bills — a far cry from the president's call to bar all anonymous sources.

"Compelling reporters to testify and, in particular, compelling reporters to reveal the identity of confidential sources intrudes on the newsgathering process and hurts the public," then-Rep. Mike Pence said at a 2005 Senate committee hearing.

Liberals and conservatives tend to agree on the principle that the news media provides a needed check on the government. And many agree that there should be some security for whistleblowers with vital information.

But there are several details tangling up a federal shield law. Should the privilege be qualified or absolute? Are non-confidential sources even subject to privilege? What if the whistleblower is criminally liable in some other way?

Perhaps one of the the thorniest questions is, who do we consider a journalist?

"I don't think anybody wants ordinary people in their pajamas to be able to claim journalistic source protections," Johnson said. 

In the digital age, it can be difficult to draw that line. Johnson said it was one of the toughest parts of writing Washington state's shield law.

Here, a journalist is anyone in the "business" of newsgathering. If someone creates an entity such as an LLC or produces work for such an entity, then they're likely covered. But that aspect of the law has yet to be tested in court.

"This was the compromise we had to make in order to make sure we got a shield law," Johnson said.

'Bright Line Of Independence'

In addition to showing young reporters how to write and investigate, Nielsen covers media ethics in her classroom.

She tells her students that it's not a journalist's job to act as an investigative arm for law enforcement. And having a shield law isn't just about encouraging people with information to speak out.

"It's important for us to maintain that bright line of independence," Nielsen said.

While she was subpoenaed a three times in the Jimenez case, she was also asked to testify on behalf of the plaintiff, the subject of her story. Even though she was proud of her work and glad to see what came of his case, she had to decline.

It's the principle of a free press that makes reporters willing to go to jail for their sources, she said.

"I didn't have anything in my notes that I was trying to hide from anybody. It didn't even matter was was in my notes," Nielsen said. "The fact of the matter was that the police were not entitled to review my notes."

This story is part of our series, Unpacking Government. Have questions of your own? Send them to unpackinggovernment@knkx.org.