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21 Jan 24

Federal Subpoenas for Journalists: When Reporter’s Privilege Applies

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Last Updated on: 21st January 2024, 10:46 pm

Federal Subpoenas for Journalists: When Reporter’s Privilege Applies

Journalists have a responsibility to protect confidential sources and information gathered during newsgathering activities. However, federal authorities may at times issue subpoenas to reporters seeking information related to criminal investigations or other matters. Understanding when reporters can claim privilege and resist disclosing sources and information is key.

Overview of Reporter’s Privilege

Reporter’s privilege, or the reporter’s qualified privilege, refers to the right of journalists to keep sources, notes, outtakes and other unpublished material confidential. This privilege is based on the First Amendment and the importance of a free press. Without it, sources may be deterred from coming forward with important information out of fear of retribution.However, reporter’s privilege is not absolute. Courts use a balancing test to weigh the public interest in compelling disclosure against the public interest in newsgathering and maintaining a free flow of information. Cases where reporter’s privilege may apply usually involve:

  • Confidential Sources: Where the reporter has promised confidentiality
  • Non-Confidential Sources: Where no promise of confidentiality was made but identification would compromise the news gathering process
  • Unpublished Information: Such as notes, outtakes, photos and documents

Whether or not privilege applies depends on factors like:

  • The nature of the case and investigation
  • How critical the information is
  • Whether there are alternative sources for obtaining the information

When Reporter’s Privilege Applies

There are certain types of cases where courts have generally recognized reporter’s privilege as outlined below.

Confidential Source Identity

Courts have largely protected the identity of confidential sources from disclosure. Forcing reporters to reveal source identities could deter whistleblowers and inhibit reporting on government and corporate wrongdoing.However, in some cases courts have still compelled disclosure where the identity was deemed “critical” to the case. This includes matters of national security or imminent threats to public safety.

Unpublished News Information

Courts have also recognized reporter’s privilege regarding unpublished notes, photos, tapes and documents gathered during newsgathering. These items remain protected unless disclosure is deemed “critical” to the case.For example, unused images or recordings may be protected from a criminal subpoena. But unused material critical to identifying a suspect may still be compelled.

Non-Confidential Sources

While confidential sources receive greater protection, some courts have also recognized reporter’s privilege regarding non-confidential sources. For example, a court may protect a reporter from having to testify about statements made by sources willing to go on-the-record.Compelling such testimony could still inhibit news gathering by deterring even non-confidential sources from speaking openly with reporters.

When Reporter’s Privilege May Not Apply

While reporter’s privilege provides important protections, it is a qualified privilege rather than an absolute one. There are instances where the public interest in disclosure outweighs reporter’s privilege.

Eyewitness to a Crime

If a journalist directly witnesses or participates in criminal activity or other legal wrongdoing, reporter’s privilege likely will not apply. Courts have generally held that reporters cannot claim privilege to withhold their own eyewitness testimony about a crime.

Newsroom Conversations & Business Records

Reporter’s privilege also does not extend to protect general newsroom conversations, business records or reporter’s personal documents. These items typically do not directly concern confidential source identities or unpublished reporting materials.However, subpoenas for such items have sometimes been viewed as attempts to harass media organizations or dig for unrelated information.

Published News Reports

Once a news story or other information has been published, reporter’s privilege does not apply. Courts have held that the public interest in disclosure outweighs reporter’s interests once published.However, just because something was published does not necessarily mean that related unpublished material, notes or sources is unprotected.

Asserting Reporter’s Privilege

If faced with a federal subpoena that implicates source identities, unpublished materials or other protected information, there are steps journalists can take to assert reporter’s privilege:

  • Meet & Confer: Attempt to meet and discuss modifying the subpoena to address privilege concerns
  • File a Motion to Quash: Formally ask the court to quash or limit the subpoena and recognize reporter’s privilege
  • Consider an Interlocutory Appeal: An appeal while the case is still pending, if the motion to quash fails

With sensitive reporting materials at stake, it is advisable for journalists to engage qualified legal counsel to assist with asserting reporter’s privilege rights against a federal subpoena.

When In Doubt, Seek Legal Advice

Determining if reporter’s privilege applies in a specific investigation or subpoena situation can be complex. The case law in this area is often fact-specific and continues to evolve across different federal jurisdictions.If faced with a federal subpoena, journalists should not hesitate to seek legal advice regarding potential privilege arguments and strategies to resist compelled disclosure. An experienced media law attorney can provide guidance tailored to the circumstances at hand.

Resources

For more on federal subpoenas, reporter’s privilege and protecting confidential sources and information, see the additional resources below:When Can Reporters Claim Privilege?
Federal Subpoenas and Reporters
Journalist’s Privilege Compendium
DOJ Guidelines for Subpoenaing Journalists