FC: AP article on subpoena; roundup of journalist shield laws

[Declan McCullagh <declan () well com>]

[Since I was on a plane Friday, I won't be able to talk to our in-house 
lawyers until Monday. I'm overwhelmed by the support I've received in 
response to news of this subpoena, and I humbly thank folks for it. --Declan]

*******

http://www.wired.com/news/politics/0,1283,42330,00.html

   Wired News Reporter Subpoenaed
   Associated Press
   6:00 a.m. Mar. 9, 2001 PST

   CAMBRIDGE, Mass. -- A reporter for Wired News has been subpoenaed to
   testify in the trial of a tax protester charged with stalking and
   threatening two federal agents.

   Declan McCullagh, who runs the online news service's Washington
   office, said Thursday he will likely fight the subpoena. He planned to
   speak with editors Friday.

   "I don't think a journalist should be testifying against a source,"
   McCullagh said. "I'm talking to folks to try to figure it out. I have
   not ruled out the possibility of jail time."

   He termed the subpoena an attempt to "intimidate reporters from
   serious investigations."

   McCullagh received the subpoena Thursday while covering the Computers,
   Freedom and Privacy conference in Cambridge. Two Treasury Department
   officials handed him the subpoena after a session on Carnivore, the
   FBI's e-mail surveillance tool.

   [...]

********

From: "Ethan Ackerman" <eackerma () u washington edu>
To: <declan () well com>
Subject: RE:  subpoena
Date: Thu, 8 Mar 2001 23:27:19 -0800

[...]
I'd welcome advice from those knowlegeable about the relevant laws.
[...]

That might be an invitation to a full inbox.
The following is for sharing if you want (w/ politech, your counsel, etc.)


1st off, reporter's committee for the freedom of the press,
http://www.rcfp.org/
is a great resource page for you.

The laws/cases are more dismal than you might think (unless you're a
pessimist/follow privacy protection cases.)

I am not an attorney, but...

Law-wise, you are out of luck.  Closest protection you have is the Privacy
Protection Act of 1980, which protects journalist material from search
warrants (not subpoenas), and state "reporter shield" laws, which might
protect you from subpoena _if this were only a state proceeding_. (N.B. I am
95% sure Washington doesn't have such a law.)

Next step, case law...
In Criminal cases in the 9th circuit, the reporter seems to be out of luck.
(see why below)
To be generous, you sit in the midst of a relatively juicy legal dispute
between the Circuits, and you are heading to Tacoma, part of the 9th
Circuit, the circuit with arguably the broadest reading of journalistic
privilege.  This is one of those situations where the Supremes probably
should take a case to (clarify/reign in itinerant circuits) on the issue.

The Controlling Supreme Ct. Case is Branzburg v. Hayes,(408 U.S. 665, 33 L.
Ed. 2d 626, 92 S. Ct. 2646 (1972)) which involved four consolidated cases in
which reporters claimed a 1st Amendment privilege to withhold testimony
before a grand jury. The majority refused to recognize a privilege and held
that requiring newsmen to appear and testify before state or federal grand
juries does not abridge the freedom of speech and press.
_BUT _
because the majority was (no comment) 5-4, and one of those 5 also wrote a
concurrence that arguably could be a dissent, all legal hell broke loose,
with some circuits adhering strictly, others looking to the concurrence as
the best statement of the law.

The 9th, in it's broadest protection case,(Shoen II) said this: "As we noted
in Shoen I, all but one of the federal circuits to address the issue have
interpreted Branzburg as establishing a qualified privilege for journalists
against compelled disclosure of information gathered in the course of their
work.
(But this was a civil case as opposed to a criminal case.)

That same 9th cicuit, (although a different panel of 3 judges) a year
earlier had this to say in Scarce, a Spokane WA criminal case (after
affirming a 'majority-only' view of Branzburg):  "Until now the only
testimonial privilege for unofficial witnesses that is rooted in the Federal
Constitution is the Fifth Amendment privilege against compelled
self-incrimination. We are asked to create another by interpreting the First
Amendment to grant newsmen a testimonial privilege that other citizens do
not enjoy. This we decline to do."

Now, the _probably_ controlling criminal case.
In FARR v. PITCHESS, the 9th circuit threw the reporter back in jail for not
saying where he got the sealed court statements.  And what they said goes
straight to criminal grand jury subpoenas: "It is clear that Branzburg
recognizes some First Amendment protection of news sources. The language of
the case likewise indicates that the privilege is a limited or conditional
one. The precise holding of Branzburg subordinated the right of the newsmen
to keep secret a source of information in face of the more compelling
requirement that a grand jury be able to secure factual data relating to its
investigation of serious criminal conduct."


About the privilege:
Actually, the privilege, if found, is usually a qualified privilege.  Its
really a burden of proof on the subpoena-er.  The idea of a "burden of
proof" balancing test comes from the Branzburg concurrence.

Looking at the 9th Circuit's best-case version, the "Shoen II" test, the
government must: (1)demonstrate that it has exhausted all reasonable
alternative means for obtaining the information.
(2)show the information sought is relevant, material, and non-cumulative,
(3)and that it is crucial to the maintenance of plaintiffs' legal claims.

2nd Worst case (Scarce test), The court can point to Branzburg and say no
privilege.
But even the Scarce court suggested that there should still be a
determination of whether the grand jury requests were posed (1)in bad faith,
or (2)without a legitimate law enforcement purpose.  (more like a due
process requirement for the court than a 1st Amendment privilege for a
journalist.)  These 2 observations were hit upon in the Branzburg
concurrence, and from the language in the Branzburg majority that says
"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."

Worst case, the court points to FARR & you testify (or do time) with no real
room for debate.


That said, there is a lot of variation, and room to argue & wiggle (or a
good bit of procedural maneuvering short of not showing up.)  Read the
rcfp.org reports for strategies, etc.
other 9th circuit cases (like Shoen or Scarce) have distinguished Farr, I
suppose you could too.


Finally, FWIW, a guess at what the Supremes think.

In 1980, Justice Brennan (In Re Roche) granted a stay of a order holding a
journalist in contempt for refusing to respond (in a criminal case), saying
that it was a fair question of law whether Branzburg was still good law, and
that the (then) current court members might well disagree.  But the case
never made it before the court.

Fast forward to 1997.  The (Arkansas)8th circuit, in the Starr-Watergate
subpoena-fest, criticizes the 9th Circuit's Shoen "reporter privilege"
holding, but goes on to affirm the broad scope of "atty-client privilege."
The Supreme court denies an appeal of that holding, a move that is generally
perceived as approval of the lower court's holding.  Its a stretch, but
perhaps that also suggests approval of the criticism of the 9th Circuit.


There's the short answer,
Ethan


Ethan Ackerman
Senior Research Fellow, Center for Law, Commerce & Technology
University of Washington School of Law
1100 NE Campus Parkway
Seattle, WA 98105
Tel:  206.440.0853/Fax: 206.616.3427
http://www.law.washington.edu/lct/
(obvious disclaimer: the previous scrawl was mine, was not attorney advice,
was simply the words of a law student, don't take it as official or related
to my employment, etc.)


Cites:
(9th Circuit finding narrowly)
In Re GRAND JURY PROCEEDINGS. JAMES RICHARD SCARCE, Witness-Appellant, v.
UNITED STATES OF AMERICA, Appellee.
No. 93-35333
5 F.3d 397; 1993 U.S. App. LEXIS 23846 May 4, 1993

(9th Circuit finding broadly)
SHOEN v. LEONARD SAMUEL SHOEN et al., Defendants, RONALD J. WATKINS,
Witness-Appellant.
No. 94-16533
48 F.3d 412; 1995 U.S. App. LEXIS 2794
February 15, 1995, Filed

(9th Circuit on criminal cases)
WILLIAM T. FARR v. PETER J. PITCHESS
No. 72-3171
522 F.2d 464; 1975 U.S. App. LEXIS 13257
August 7, 1975

(speculation on what the Supremes now think.)
IN RE ROCHE
No. A-66
SUPREME COURT OF THE UNITED STATES (Single opinion of Brennan)
448 U.S. 1312; 101 S. Ct. 4; 1980 U.S. LEXIS 2519
July 23, 1980, Decided

(The Supremes denied certiorari (declined to hear) this case)
In re: Grand Jury Subpoena Duces Tecum (To the White House)
No. 96-4108
8TH CIRCUIT
112 F.3d 910; 1997 U.S. App. LEXIS 9840
April 9, 1997




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