Journalist Privilege When Dealing With Federal Subpoenas

Journalist Privilege When Dealing With Federal Subpoenas

Journalists have a complicated relationship with federal subpoenas. On one hand, they have a duty to report newsworthy information to the public. On the other hand, they often rely on confidential sources who speak only on condition of anonymity. What happens when a federal prosecutor wants to force a journalist to reveal their confidential sources? This issue has led to an ongoing debate about “reporter’s privilege” – the right of journalists to refuse to testify or reveal sources.

The rules on reporter’s privilege vary quite a bit depending on the jurisdiction. Some states have “shield laws” that provide journalists with fairly strong protections against having to testify or reveal sources. At the federal level, however, the law is far less clear. There is no federal shield law, and courts have issued conflicting rulings on whether the First Amendment provides any sort of reporter’s privilege. The lack of clarity has led to many high-profile clashes between journalists and federal prosecutors.

The Branzburg v. Hayes Decision

The Supreme Court first addressed the issue of First Amendment protections for journalists in Branzburg v. Hayes (1972). In a 5-4 ruling, the Court rejected the notion of a First Amendment-based reporter’s privilege. However, the decision was somewhat murky. Four justices ruled that reporters had no privilege at all to refuse to testify before grand juries. But Justice Lewis Powell, who joined the majority opinion, wrote a concurring opinion suggesting that courts should balance the interests at stake in each specific case. And the four dissenting justices argued strongly that the First Amendment does provide journalists some protection against forced testimony.

So while Branzburg seemingly settled the reporter’s privilege issue, its dueling opinions left enough wiggle room for lower courts to recognize some First Amendment protections for journalists. As a result, the federal appeals courts have developed their own tests for when reporters can avoid testifying.

The Federal Appeals Court Tests

Most federal appeals courts have recognized some form of qualified First Amendment privilege for journalists:

• The Second Circuit uses a three-part balancing test that considers the relevance of the information sought, whether there are alternative sources for that information, and the importance of the information to the case.
• The Third Circuit has adopted a similar three-part test, while also recognizing a federal common law privilege for journalists.
• The Ninth Circuit recognizes a qualified journalist privilege, but has not articulated a specific test. Courts balance the need for the information against the public interest in protecting confidential sources.
• The D.C. Circuit recognizes a qualified privilege, but has emphasized that it only applies to confidential source information in civil cases.

In other circuits, the law remains unclear or hostile to reporter’s privilege claims. For example, the Sixth Circuit rejected the idea of any First Amendment privilege in a 2005 case. The mixed results in the appeals courts mean the scope of protection can vary significantly depending on where a subpoena is issued.

Department of Justice Guidelines

Given the unsettled state of the law, the Department of Justice has tried to impose some discipline on federal prosecutors seeking journalists’ testimony. The DOJ Guidelines require prosecutors to exhaust other sources for information before subpoenaing journalists. They must also obtain permission from the Attorney General before issuing subpoenas to the press.

The guidelines articulate specific criteria for the Attorney General to consider, including whether the information is essential to the case and whether it relates to an issue of public concern. In theory, the guidelines raise the bar for federal subpoenas targeting journalists. But press advocates have criticized their lack of teeth. Ultimately, the guidelines don’t have the force of law and are subject to change depending on the administration.

Recent High-Profile Cases

Despite the DOJ guidelines and federal court tests, prosecutors continue to subpoena journalists, leading to criticism that the guidelines are ineffective. Here are some recent high-profile cases:

• In 2013, the DOJ came under fire for secretly obtaining two months of phone records from Associated Press reporters as part of a leak investigation. This led to revised DOJ guidelines in 2015.
• In 2018, New York Times reporter Ali Watkins’ phone and email records were seized in relation to a leak investigation. Prosecutors were accused of ignoring the DOJ guidelines.
• Also in 2018, federal prosecutors subpoenaed years of email and phone records from a New York Times reporter. The newspaper challenged the subpoena, but a federal judge ultimately ruled that most of the records had to be turned over.
• In 2020, prosecutors obtained an order for Google to turn over data on the emails of four New York Times reporters. The Times succeeded in blocking the subpoena.

Press freedom groups argue these cases show federal law enforcement continues to take an aggressive stance toward subpoenaing journalists, despite the DOJ guidelines. But the government argues that leaks of classified information justify seeking reporters’ records in some cases.

State Shield Laws

Part of the debate stems from the lack of an absolute federal reporter’s privilege. Many states have passed shield laws that provide stronger protections:

• New York’s shield law protects nonconfidential information and does not include an exception for criminal cases.
• California provides near-absolute protection for journalists in both civil and criminal cases.
• Illinois, Nebraska, and New Jersey have also passed strong shield laws protecting journalists.

Some advocates argue Congress should pass a federal shield law to strengthen protections for journalists across the country. A federal shield law would reduce uncertainty and provide clearer standards for both journalists and prosecutors. But opponents argue an absolute privilege would hamper law enforcement and improperly elevate journalists over other citizens who don’t have a right to refuse subpoenas. With competing interests on both sides, the debate over a federal shield law has gone on for decades without resolution.

Weighing Interests in an Uncertain Environment

So where does this leave journalists dealing with federal subpoenas? Unfortunately, in a state of uncertainty. The Branzburg decision suggests reporters have no special First Amendment rights when subpoenaed in criminal cases. But most federal circuits have recognized at least some qualified privilege, and the DOJ guidelines set additional limits on federal prosecutors. This means whether a journalist can avoid testifying depends a great deal on the specific circumstances of each case.

Judges will weigh factors like whether the subpoena seeks confidential or non-confidential information, whether the reporter is a party to the case or a third-party witness, and the importance of the information to the ongoing case. Reporters can increase their odds of quashing a subpoena by demonstrating they have limited value as a witness and that their testimony would compromise confidential source relationships.

The bottom line is that there are no absolute guarantees of protection for journalists dealing with federal subpoenas. The law remains unsettled, and much depends on prosecutorial discretion and judicial balancing of competing interests. Journalists should consult experienced media law counsel when served with a federal subpoena. While the First Amendment may not provide absolute immunity, there are still arguments to be made based on existing privilege law and the DOJ guidelines.