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.
Although uniform state shield laws would reduce uncertainty for reporters on the state court level, a solution to varying federal court tests may appear in the form of a federal shield law. Fox News reporter Jana Winter has been subpoenaed in connection with her report on the Aurora, Colorado movie theatre shooting of July Winter was one of the first to report on a notebook owned by suspect James Holmes that allegedly contains details of Holmes's planned attack.
Winter's report included allegations that the notebook was sent to a physiatrist prior to the tragic mass shooting.
In DecemberHolmes's defense attorneys accused Winter of violating a gag order that had been put in place to avoid any leaks that may negatively affect their client's case. Now, New York State's Appellate Division is hearing an appeal about whether Winter must comply with a subpoena to divulge confidential sources from her report.
The court's decision will address whether Winter is permitted to remain under the protection of New York's shield law or be forced to testify under Colorado's comparatively weaker shield law. In balancing a court order that Winter must testify against the value the public may gain by shielding her from testifying, Winter's situation demonstrates that journalists can be left without clear guidance to face conflicting state shield laws.
To date, 49 states and the District of Columbia have passed some form of a shield law or recognize some level of privilege for reporters. While this majority number may seem comforting to American journalists, great disparity among the protection afforded by these state shield laws has led to conflict -- as demonstrated by Winter's being caught between jurisdictions.
An analysis of New York's shield law and Colorado's shield law highlights how conflicts could be avoided by more uniform state shield laws across the country. Both New York's shield law and Colorado's shield law pull from the leading U. Supreme Court case in this area, Branzburg v.
Hayeswhich held that reporters have a duty to respond to relevant questions put to them during a grand jury investigation and the First Amendment may not be used as a defense for reporters summoned to testify in court.
Justice Powell's often-cited concurrence emphasizes the importance of balancing freedom of press and the obligation of all citizens to give testimony. New York and Colorado both reacted to the Supreme Court's holding in Branzburg by establishing a statutory privilege, but took different measures.
In placing the two side-by-side, it is clear that New York's shield law -- which provides absolute protection for confidential information and related material gathered by a journalist -- provides its journalists more protection than Colorado's shield law.
For example, there are the clear differences in the statutory exceptions to shield law protection through which a court can require disclosure. New York law grants an exception to a party seeking a subpoena for a journalist to testify if the party "has made a clear and specific showing that the news: Nondisclosure exceptions require that the party issuing the subpoena show, by a preponderance of the evidence, that the news information is: Further, the Colorado shield law permits an exception for a search warrant that is in compliance with the federal Privacy Protection Act of Whereas New York provides journalist protection unless the news is "critical or necessary" to a claim, Colorado only needs a party to show the information is "directly relevant.
Meanwhile, on the federal side, some federal courts apply the reasoning from Branzburg to create a form of quasi shield law protection. For example, the 1st Circuit has interpreted First Amendment rights to grant journalists and others some protection in federal courts.
The 2nd Circuit has leaned heavily on Justice Powell's concurrence in Branzburg; both the 2nd Circuit and the 3rd Circuit have cited a reporters' privilege as a "federal common law privilege" available to journalists to refuse to divulge their sources.
So, while federal courts look to Branzburg, reasoning among the circuits, like in the states, seems scattered and is hardly uniform. But at least on the federal level, some level of uniformity may be created by the enactment of a federal shield law.
A federal shield law is hardly a novel idea.
Rumblings began in the early 's, and the idea of a federal shield law has resurfaced time and time again. It seems that each time, history intervenes and the federal shield law falls to the wayside. A recent shield law resurgence occurred back inand history intervened once again. This time, the movement was hindered by WikiLeakswhich caused many would-be voting senators to back down from supporting the federal shield law in the face of a federal investigation into WikiLeaks and the national security risks it posed.
The proposal was also delayed by the question of how a federal shield law might protect non-traditional media outlets, such as blogs.
The line may be blurred further when considering whether a federal shield law would protect those who typically may not be thought of as a textbook "journalist. Or would freedom of the press be limited to only household media names?WASHINGTON POST MR. JUSTICE POWELL, dissenting.
The specific issue in this case is the constitutionality of the Bureau's ban against prisoner-press interviews. That policy is set forth in § 4b(6) in light of Branzburg v. Hayes, U.S. (), the. STATE SHIELD LAWS: AN OVERVIEW privilege in Branzburg v. Hayes, U.S.
(). The journalists in the consolidated Branzburg cases argued that the free flow of information would be chilled if they could not ensure the anonymity of sources.1 If a reporter’s privilege does not exist to protect.
Paul Branzburg worked as a staff reporter for a daily Louisville, Kentucky newspaper called the Courier-Journal. On November 15, , Branzburg covered a story regarding two individuals synthesizing hashish from marijuana for profit.
Case opinion for US Supreme Court BRANZBURG v. HAYES. Read the Court's full decision on FindLaw. New Developments in Evidentiary Law in New York Each chapter in the Inside the Minds series offers thought leadership and expert analysis on an industry, profession, or topic, should be decided on a case-9 Branzburg v.
Hayes, U.S. (). 10 Id. at 11 Id. at The Supreme Court and the Not-So-Privileged Press John D.
Epps University of Richmond THE SUPREME COURT AND THE NOT-SO-PRIVILEGED PRESS I. INTRODUCTION the Burger Court decided Branzburg v. Hayes.'- This case held that news-.