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Freedom of the press enjoys broad legal protection. The press is largely immune from lawsuits charging defamation, invasion of privacy and publication of information acquired unlawfully by third parties. The press can almost never be denied access to legal proceedings, nor can it be restrained from publishing anything it wishes about almost any matter of public interest. To be sure, there are limits; newsrooms can be searched for criminal evidence, the press can be sued by confidential sources for breach of contract, and reporters on occasion have been required to reveal confidential sources. The latter issue recently has captured headlines as have accusations that freedom of the press is under attack. A journalist, Vanessa Leggett, spent 168 days in jail in 2001 after refusing to respond to a subpoena for the identities of people who gave her information about a Houston murder. A Rhode Island television reporter, Jim Taricani, was sentenced on Dec. 9, 2004, to six months of home confinement for refusing to reveal to federal investigators the source who gave him an FBI videotape that was evidence in a government corruption case. The U.S. Circuit Court for the District of Columbia currently is reviewing a decision in In re Special Counsel Investigation, which ordered two reporters jailed for refusing to identify confidential sources to a grand jury. The reporters, Judith Miller of the New York Times and Matthew Cooper of Time-were questioned by a federal grand jury in connection with an investigation by Special Prosecutor Patrick Fitzgerald into allegations that high-level government officials, in violation of federal law, leaked the name of a covert CIA agent to the press. Journalists have argued that issuing subpoenas to reporters for information obtained from confidential sources, and then seeking to jail the reporters for their refusal to comply, violates the First Amendment protections of speech and press. They claim that the cases described above illustrate a dangerous trend: “Subpoena madness,” they say, impedes the free flow of information to the public and improperly turns the media into an investigative arm of government. However, the claim that print and broadcast journalists are being manipulated-and have become manipulators-to this extent may be overstated. The basis for the claim was squarely rejected by the U.S. Supreme Court in 1972 in Branzburg v. Hayes, which held that reporters have no constitutional right to refuse to appear and testify before grand juries. Branzburg’s reach Although decided by a narrow majority, Branzburg remains the settled law on the scope of the so-called reporter’s privilege. Justice Byron White phrased the majority holding narrowly: Requiring reporters to appear and testify before grand juries does not abridge freedom of speech or the press. Justice Lewis Powell, who cast the critical fifth vote, suggested that only a “legitimate need of law enforcement” could trump the constitutional protections, as opposed to testimony that might be “remote and tenuous” to the investigation. There is little question that the journalists’ testimony is crucial to the Fitzgerald investigation. During the oral argument of In re Special Counsel on Dec. 8, 2004, the court articulated its belief that Branzburg definitively required affirmance of the district court’s order and that Miller and Cooper had been unable to distinguish Branzburg or persuasively argue against its continuing validity. The journalists were at a disadvantage, since it is unclear where the investigation stands, or precisely what information the grand jury seeks from them. Ironically, Miller never wrote an article about the case, and Cooper published one only after columnist Robert Novak (who has not been charged with any wrongdoing) initially disclosed the identity of the CIA agent. While this case has garnered much attention, most prosecutors do not make it a practice to subpoena reporters before grand juries unless it is absolutely necessary. In the 10 years prior to Sept. 11, 2001, the U.S. Department of Justice issued 88 subpoenas to the news media, and only 17 sought information that could identify a reporter’s source. The incidence of subpoenas issued by state and local prosecutors varies, but does not appear to support the allegation of widespread prosecutorial abuse. More recent statistics are unavailable, but it appears that since Sept. 11, the media are consenting to disclosure upon the government’s request. Many prosecutor’s offices have issued internal guidelines that regulate the issuance of subpoenas to the media. For example, guidelines issued by the DOJ require that: “all reasonable attempts should be made to obtain information from alternative sources;” subpoenas should be limited to information that is “essential;” prosecutors must negotiate with the media before issuing subpoenas; and no subpoena may issue without authorization from the attorney general. Although it has been claimed that the DOJ under John Ashcroft often flouted these guidelines, it is also true that most prosecutors value the importance of the media and rely on their good relationship with the media to aid their investigations. Although federal law does not provide a statutory privilege, virtually every state has enacted shield laws that protect reporters from having to disclose confidential sources to a grand jury. With the recent lawsuits pitting the press against the government, the Supreme Court might choose to revisit Branzburg. The court has shown a willingness to create common law testimonial privileges. Indeed, in Jaffee v. Redmond (1996), the court created a new federal psychotherapist-patient privilege; this suggests the court is aware of the need to protect certain categories of communications from being revealed when the nature of the relationship requires confidentiality. Whether there should be a similar common law privilege protecting the relationship between a reporter and his or her confidential source may be argued soon at the high court. Bennett L. Gershman is a professor of law at Pace University Law School.

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