Subpoenas and Searches

Question 1

what law governs this area

Answer 1

• governed by state reporter privilege statutes

Question 2

what is reporter’s privilege

Answer 2

o defined: where reporters are not required to respond to state/federal subpoenas about info obtained from confidential new sources
 usually, the reporter must supply some info to lay the foundation for the privilege
 the reporter may waive the privilege
 defeating the privilege seems to succeed more often in libel cases

Question 3

what is the Branzburg rule on reporter’s privilege and where do we stand today

Answer 3

o (original) governing rule: the 1st Am does not protect subpoenaed reporters from testifying before a criminal grand jury about info obtained from confidential sources (Branzburg)
 only where new sources themselves are implicated in a crime or possess info relevant to the grand jury’s task need they or the reporter be concerned about grand jury subpoenas
 govt need not show a “compelling need” before a reporter can be forced to appear before a grand jury (Caldwell)

 **today, the states have provided newsmen a privilege from this rule of vary breadth (whether statutory, common law, or constitutional)

Question 4

what is the Branzburg rule on right of access and where do we stand today

Answer 4

o rule: the 1st Am does not guarantee the press a constitutional right of special access to info not available to the general public (Branzburg)
 **this, similar to the other Branzburg rule, now varies greatly from state to state

Question 5

what is the TN reporter’s privilege

Answer 5

o Tenn. Code Ann. § 24-1-208
 protects journalists’ sources and info gathered for publication or broadcast, whether obtained confidentially or not, and whether published or not

Question 6

who is considered a “reporter”

Answer 6

o reporter: someone who publishes info – super low bar for “publication,” just needs to be some form of dissemination

Question 7

how does the govt handle govt leak cases

Answer 7

o rule: in leak cases, courts applying the privilege must consider not only the government’s need for the information and exhaustion of alternative sources, but also the two competing public interests lying at the heart of the balancing test (In re Judith Miller, Grand Jury Subpoena):
 (1) the public interest in compelling disclosure, measured by the harm the leak caused; against
 (2) the public interest in news gathering, measured by the leaked information’s value
 (given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege)

Question 8

second circuit approach to applying reporter’s privilege to confidential vs nonconfidential materials

Answer 8

 confidential materials: disclosure may be ordered only upon a clear and specific showing that the information is:
• highly material and relevant,
• necessary or critical to the maintenance of the claim, and
• not obtainable from other available sources

 non-confidential materials: plaintiff must show the materials at issue:
• are of likely relevance to a significant issue in the case, and
• are not reasonably obtainable from other available sources

Question 9

rules for reporter as eyewitness

Answer 9

o the Florida Supreme Court has held that the First Amendment privilege extends to both confidential and nonconfidential information gathered in the course of a reporter’s employment but does not apply to eyewitness observations or physical evidence, including recordings of a crime (Davis)

o when the reporter has witnessed the commission of a crime, the courts may hold the privilege inapplicable even when the observation occurred pursuant to a promise of confidentiality (Criden)