A. Freedom of the press under the First Amendment



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      • Freedom of the press under the First’ Amendment


  • A. Freedom of the press under the First Amendment



  • What do these words mean in the law?

  • http://www.youtube.com/watch?v=eeVrzrmgitQ



    • Drafters of the Bill of Rights embraced the notion, derived from William Blackstone, that a free press may not be licensed by the sovereign, or otherwise restrained in advance of publication


• “Chief purpose” of the free press clause is “to prevent previous restraints upon publication.”

    • • “Chief purpose” of the free press clause is “to prevent previous restraints upon publication.”
    • – Near v. Minnesota (U.S. 1931)


    • Supreme Court “constitutionalized” libel law as applied to the press in New York Times Co. v. Sullivan (U.S. 1964)
      • “Central meaning” of the First Amendment: A “profound national commitment” that "debate on public issues ... [should be] ... uninhibited, robust, and wide-open."


    • “Constitution prohibits a public official from recovering for [libel] relating to his official conduct unless he proves that the statement was made with 'actual malice' — with knowledge that it was false or with reckless disregard of whether it was false or not.”


      • • Does the First Amendment include a privilege for journalists against compelled testimony about news sources or news gathering?


    • Journalists subpoenaed to testify before grand juries.
    • One of the cases involved a reporter refusing to disclose the identity of confidential sources to a grand jury.
    • Reporters contended that they were shielded by a privilege under the First Amendment.


Justice Byron White framed the question:

    • Justice Byron White framed the question:
    • “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.”


“Without some protection for seeking out the news, freedom of the press could be eviscerated.”

    • “Without some protection for seeking out the news, freedom of the press could be eviscerated.”
    • However . . .
      • “We perceive no basis for holding that the public interest in … grand jury proceedings is insufficient to override the … burden on news gathering … from insisting that reporters, like other citizens, respond to relevant questions … in the course of a valid grand jury investigation or criminal trial.”


    • “[G]rand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.”


    • “If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if … his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash.”


Recognized First Amendment privilege

    • Recognized First Amendment privilege
    • “I would hold that the government must (1) show … that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.”


Four dissenters plus Powell’s concurrence all found First Amendment support for some form of a reporter’s privilege.

  • Four dissenters plus Powell’s concurrence all found First Amendment support for some form of a reporter’s privilege.

  • Created an apparent majority for a First Amendment privilege.

  • Or at least, that was the face of Branzburg in many lower court decisions during the next two decades.



    • Branzburg recognized news gathering deserves some First Amendment protection.
    • Justice Powell concurring opinion stated that courts can determine whether a privilege applies by using a balancing test.
    • Thus a qualified privilege available, even where a reporter is called before a grand jury to testify.


“We decline” to take Justice Powell’s concurrence as a mandate for qualified news reporters’ privilege in criminal cases.

  • “We decline” to take Justice Powell’s concurrence as a mandate for qualified news reporters’ privilege in criminal cases.

  • Powell only emphasized that at a certain point, the First Amendment protects the press from government.

  • To Powell, that point occurs when the grand jury investigation is not being conducted in good faith.



Justice White in Branzburg invited legislative solution

    • Justice White in Branzburg invited legislative solution
      • Many enacted in 1970s – 80s


Balco / MLB steroids investigation – SF Chronicle reporters cited for contempt for refusing to disclose source of leaked grand jury transcripts in Barry Bonds case. http://www.youtube.com/watch?v=NH4i7dXBGO8

    • Balco / MLB steroids investigation – SF Chronicle reporters cited for contempt for refusing to disclose source of leaked grand jury transcripts in Barry Bonds case. http://www.youtube.com/watch?v=NH4i7dXBGO8


Valeri Plame – NYT reporter Judy Miller jailed for 85 days for refusing to identify White House source who outed undercover CIA agent.

    • Valeri Plame – NYT reporter Judy Miller jailed for 85 days for refusing to identify White House source who outed undercover CIA agent.
    • Wen Ho Lee – Non-party news organizations pay to settle nuclear scientist’s privacy case after reporters ordered to disclose confidential sources.
    • Vanessa Legget – Houston book author jailed for 168 days for refusing to testify before federal grand jury investigating murder for hire.
    • Grand jury cases rejected First Amendment privilege; civil case applied it narrowly to overcome privilege.


  • Generally most provide a “qualified” rather than “absolute” privilege

  • Journalist testimony not compelled unless the party seeking the information shows:

    • Information is highly material and relevant.
    • Compelling need.
    • Information not available by other means.
      • (Compare with Justice Stewart’s dissent.)


    • Protects confidential sources only in some.
    • Unpublished information also protected in others.
    • Some apply in both criminal and civil cases
    • Others apply only in civil proceedings.


  • October 2007, U.S. House passed the Free Flow of Information Act (H.R. 2102) by 398 to 21.

  • Senate Judiciary Committee approved similar provision (S. 2035).

  • Both provide a qualified privilege to reporters that would apply in criminal and civil contexts.

    • Senate version protects only the identity of confidential sources and records.
    • House bill extends protection not only to confidential sources and to documents or information obtained during the newsgathering process.


Texas Free Flow of Information Act (SB 966)

  • Texas Free Flow of Information Act (SB 966)

    • Passed by the Senate in 2007
    • But died in the House in the last days of the 80th regular session
      • objection on a point of order.
    • Qualified privilege against compelled court testimony or disclosure of confidential sources.


D. Conclusion

      • D. Conclusion



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