2. An old dilemma In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate
3. An old dilemma In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate The Herald gave Nugent a raise
4. An old dilemma In 1848, John Nugent of the New York Herald was held for refusing to identify a source to the Senate The Herald gave Nugent a raise After a month, the Senate gave up
5. Another clash over the Sixth â[T]he accused shall enjoy the right ⊠to have compulsory process for obtaining witnesses in his favorâ
6. Another clash over the Sixth â[T]he accused shall enjoy the right ⊠to have compulsory process for obtaining witnesses in his favorâ All must testify before the grand jury
7. Another clash over the Sixth â[T]he accused shall enjoy the right ⊠to have compulsory process for obtaining witnesses in his favorâ All must testify before the grand jury The First Amendment belongs to everyone, not just the press
10. Journalistâs orreporterâs privilege As with free press/fair trial, a balancing test Courts decide on a case-by-case basis Guidelines have shifted over time
11. Branzburg v. Hayes (1972) Paul Branzburgâs sources had information about drugs Two co-defendants had done confidential reporting on the Black Panther Party
12. Byron âWhizzerâ White Wrote majority opinion Rejected reporterâs privilege Wrote that âthe lonely pamphleteerâ is as important as professional journalists
13. Potter Stewart Wrote minority decision Criticized majorityâs âdisturbing insensitivityâ to the role of a free press Proposed a three-part balancing test
14. The Stewart test Does the journalist possess âclearly relevantâ information?
15. The Stewart test Does the journalist possess âclearly relevantâ information? Is there no way of obtaining the information by âless destructiveâ means?
16. The Stewart test Does the journalist possess âclearly relevantâ information? Is there no way of obtaining the information by âless destructiveâ means? Is there a âcompelling and overriding needâ for the information?
17. Powellâs âenigmaticconcurring opinionâ Sides with majorityâs view that there is no reporterâs privilege Calls for âstriking of a proper balanceâ between freedom of the press the obligation to testify Stewart wins by losing (but not forever)
19. The balancing test in practice Relevance and importance of information Availability through alternative means
20. The balancing test in practice Relevance and importance of information Availability through alternative means Type of controversy Reporterâs privilege is weaker in a criminal case than a civil case
21. The balancing test in practice Relevance and importance of information Availability through alternative means Type of controversy How information was gathered Confidential sources are more privileged than first-hand observation such as Josh Wolfâs footage
22. Shield laws About 30 states have them A shield law is being considered in Massachusetts
23. Shield laws About 30 states have them Except for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege
24. Shield laws About 30 states have them Except for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege None is absolute â more like the Stewart balancing test
25. Shield laws About 30 states have them Except for Wyoming, remaining states have judicial opinions granting some degree of journalistic privilege None is absolute â more like the Stewart balancing test No federal shield law
26. What should be protected? Justice White said you canât define who is a journalist Vanessa Leggett ran afoul of this and served 168 days Is it possible to define journalism?
27. Citizen journalists Josh Wolf is the modern âlonely pamphleteerâ We need to protect journalism, and not worry about whoâs a journalist
28. Media arrogance Mark Bowden asks: Why should the media stand in the way of justice? âThe First Amendment protects freedom of the press, but it doesnât absolve it from all civic responsibilityâ
30. Cohen v. CowlesMedia Co. (1991) Damned if you do, damned if you donât Based on the doctrine of promissory estoppel A false promise that leads someone to engage in damaging behavior Similar to contract law
31. Cohen v. CowlesMedia Co. (1991) Damned if you do, damned if you donât Based on the doctrine of promissory estoppel A false promise that leads someone to engage in damaging behavior Similar to contract law Justice White: âgenerally applicable lawsâ do not violate First Amendment
32. McKevittv. Pallasch (2003) Richard Posner a highly influential conservative judge Canât ignore Supreme Court precedent Tells colleagues to re-read Branzburg and see it for what it is
33. Judith Miller case (2005) Judge Sentelle adopts Posnerâs view Notes that Justice Powell sided with the Branzburg majority Adds that Justice Department used balancing test