Professor Reynolds‘ Wall Street Journal article on the strange case of Vanessa Leggett — a freelance journalist who was jailed for refusing to turn over certain notes to the U.S. Justice Department — seems to contain a minor legal inaccuracy. The article reads in relevant part:
Contrary to frequent assertions from professional journalists, there is no special First Amendment protection for members of the press. Such protections, to the extent they exist at all, exist only as a matter of statutory or regulatory grace. Under the First Amendment, everyone enjoys the same protection as “professional journalists.” Ms. Leggett probably had First Amendment grounds for refusing to turn over all of her notes, but not for refusing to testify to a grand jury, and not for refusing to make her notes available for copying (rather than seizure). Her refusal to testify may make her a heroine to journalists, but it does not make her a First Amendment heroine.
Now, (1) this isn’t my area and (2) I think Professor Reynolds is mostly right. But he is also a bit wrong, if I recall correctly.
The relevant case — Branzburg v. Hayes, et al. — had four votes for Reynolds’ “no protection whatsoever” viewpoint, and four for the “at least some protection” approach (including one, by Justice Douglas, for the “I like my constitutional protections the way I like my condoms: total protection” approach.)
The fifth, deciding vote for “no protection” was cast by Justice Powell in a concurrence. This concurrence is crucial, and it’s not nearly as absolute as the plurality opinion for “no protection.” To the contrary, it seems to suggest that there are certain limited First Amendment protections for newsgathering. When Powell’s concurrence is added to the four “at least some protection” votes, it arguably creates a majority for the viewpoint that there are at least some narrow First Amendment protections for newsgathering.
The concurrence reads in whole (it’s short):
MR. JUSTICE POWELL, concurring.
I add this brief statement to emphasize what seems to me to be the limited nature of the Court’s holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. Certainly, we do not hold, as suggested in MR. JUSTICE STEWART’S dissenting opinion, that state and federal authorities are free to “annex” the news media as “an investigative arm of government.” The solicitude repeatedly shown by this Court for First Amendment freedoms should be sufficient assurance against any such effort, even if one seriously believed that the media – properly free and untrammeled in the fullest sense of these terms – were not able to protect themselves.
As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will [408 U.S. 665, 710] be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that 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 and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. *
In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.
This isn’t the same as “there is no special First Amendment protection for members of the press,” as Professor Reynolds contends. Indeed, I think I recall at least a couple cases that have expressly followed Justice Powell’s concurrence and recognized a narrow newsgathering privilege under the First Amendment.
Again, this isn’t my area. It looks like, however, that Professor Reynolds is a wee bit wrong on the law.
This is an interesting quote because it goes in two directions at once without really defining the issues. The word newsman at the beginning isn’t really necessary. You could equally say that “…if a citizen is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that 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 and an appropriate protective order may be entered”.
But the justice then goes on suggest a number of factors which apply to reporters. This suggests that there are special protections, but the language is couched in terms which suggest the very same protections that are available to non-reporters. Odd.
Sebastian —
I think, in context, the concurrence has to apply to members of the “press,” for which Stewart uses “newsman” as shorthand. That’s the relevant First Amendment protection, after all. If I could guess further, I suspect that the abiguity is because Stewart wasn’t quite sure about which definition of “press” should apply.
I agree, but I think it is very odd to decide that the press has some special protections, and then outline the protections that everyone has. Maybe he is suggesting some extra-special consideration for reporters ought to be given within the normal process with “The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”, but it remains fairly clear that the process of looking at such claims is the same as for non-reporter citizens.
I agree, but I think it is very odd to decide that the press has some special protections, and then outline the protections that everyone has.
Where are you getting this “protections that everyone has”? Stewart consistently, and only, refers to Newsmen. When he refers to the First Amendment, he’s referring to the Freedom of the Press (which, incidentally, is not the same as Freedom of Speech). We can debate who is a newsman, but there’s no debate that this protection applies only to newsmen.
But I don’t think that is true. Anyone who believes he is “called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that 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 and an appropriate protective order may be entered.”
Am I wrong about that?
Am I wrong about that?
With due respect, you are. Here’s the full quote (emphasis mine); it’s the same as your quote, but it adds the bit in bold, which resolves the apparent confusion. It’s not “anyone” who’s called; it’s
The very next sentence makes it even plainer (if that’s possible):
Now, again, this really isn’t my area. But it seems that Potter Stewart’s necessary concurrence directly contradicts Professor Reynold’s legal analysis. Reynolds is, I think, indisputably wrong on the law. (Though, admittedly, not by much. It may just be human sloppiness on his part. Still, he’s a law professor opining on the law; he should be held to an appropriately high standard.)
This is where I think (but once again I’m not sure) that you are going wrong. And I’m not expressing myself clearly.
Yes I saw the part in bold. But my point is that if you were writing on the subject (independent of this opinion) you could substitute the word ‘newsman’ with ‘citizen’ and you will still have been stating a proper analysis of the law. All citizens can move to quash, and all citizens can move to quash based on too distant connections or confidentiality.
That is what makes the opinion interesting. Clearly Powell believes there is something more, but when he outlines what the ‘more’ is he ends up restating pretty much what everyone has. I think he is saying something like citizens get a process with X presumption of protection and reporters get the same process with X+20 presumption of protection.
Outside of spousal privilege, doctor-patient privilege and priest-pentitent privilege (each of which is highly specific and limited in scope), what sort of ‘citizen confidentiality’ claim do you think a court would protect? If I have a conversation with someone whose only relationship to me is that of a friend, and I’m brought before a grand jury, I don’t think I can refuse to answer just because I promised not to tell anyone about the conversation. Sebastian, are you claiming otherwise?
Sebastian —
If you’re still reading ….
I understand your point, but take a look at the relevant paragraph again. “Newsman” and “citizen” are not substitutes, because the paragraph goes on to list items of peculiar interest to Newmen:
I agree, though, that Stewart’s concurrence is vague.
I’m not trying to assert a particular position, I’m pointing out that the whole problem is even weirder than your original post suggested. It is funny to see how different shifts in emphasis effect the meaning.
My point is that any citizen can claim that the information has only a remote and tenuous relationship to the subject of the investigation. There are also numerous protected confidential situations.
John Casey, I suspect there are other situations that might come up in a business setting. If the grand jury sought access to a secret formula or process, it would almost certainly be subject to a protective order or motion to quash. Certain private investigations, especially if protected by the attorney-client privilege might also be protected. If a business were subject to subpoena for records, I suspect that they might want to redact confidential personnel information if not bearing on the investigation. I guess my point is that the motion to quash or application for protective order doesn’t just exist for reporters. As such, I think it is clear that Powell is trying to talk about something MORE than the regular process, but in doing so he pretty much just talks about the regular process.
He intially suggests that there is some sort of ‘confidential source’ protection in the Constitution, but he does the typical ‘I don’t want to decide’ move of turning it into a hugely vague balancing test.
He intially suggests that there is some sort of ‘confidential source’ protection in the Constitution, but he does the typical ‘I don’t want to decide’ move of turning it into a hugely vague balancing test.
Fair enough. But my point has been that Reynolds’ contention that “there is no special First Amendment protection for members of the press” is controverted by Stewart’s concurrence. Arguing that there is a “special First Amendment protection for members of the press,” but it’s vague, doesn’t make Reynolds’ right.