In order to enjoy the inestimable benefits that the liberty of the press ensures, it is necessary to submit to the inevitable evils that it creates.
When a federal grand jury was convened to investigate the possibility of filing federal murder charges against Houstonian Robert Angleton, the city braced itself for another media frenzy. In 1998, Robert Angleton had been acquitted in state court of murdering his wife, socialite Doris Angleton, who was found shot to death on April 16, 1997, in her River Oaks home. The state court trial had been a media circus, replete with a rumored millionaire bookie, his ne'er-do-well brother, a messy impending divorce, and a jailhouse confession and suicide.
However, the person who received the most attention was not directly involved in the murder. Vanessa Leggett, a part-time college instructor and aspiring true crime writer, stole the limelight when she refused to turn over to the federal grand jury information that she had gathered during her four-year investigation. On July 19, 2001, Leggett was held in civil contempt under 28 U.S.C. § 1826 as a recalcitrant witness. She went to jail the next day and was not released until January 4, 2002, when the grand jury ended its Angleton investigation without handing down a single indictment.
Leggett was incarcerated longer than any reporter in U.S. history for refusing to disclose research collected in the course of newsgathering. As is usual in states like Texas with no shield laws, neither the district court nor the Fifth Circuit showed compassion for Leggett's professional integrity and loyalty to her confidential sources. She was forced to serve the maximum term for contempt of court, which was the shorter of either the duration of the grand jury investigation or eighteen months.
But the most disconcerting aspect of the Leggett case is that neither court adequately investigated the actions of the U.S. Department of Justice (DOJ) or balanced the interests of the First Amendment against the government's need for Leggett's research. Indeed, there may have been no need for her information at all. On January 8, 2002, four days after Leggett's release, the U.S. attorney empanelled another grand jury to investigate Robert Angleton. It was able to hand down an indictment in sixteen days without subpoenaing Leggett or her records.
Damaging Blow to Reporter's Privilege
Although this scenario has played out between the media and law enforcement agencies many times before, Leggett's contempt citation and the Fifth Circuit's holding represent an especially damaging blow to the reporter's privilege because the court held that the First Amendment did not apply to her case at all. Although the Fifth Circuit settled in dicta the issue of whether Leggett was a journalist and thus able to claim the reporter's privilege, it held that the case did not turn on that question. Rather, the Fifth Circuit made the sweeping pronouncement in Leggett's case and an earlier reporter's privilege case that the Constitution does not offer any testimonial or material privilege for reporters in the context of a grand jury or even a criminal proceeding.
The Fifth Circuit's recent decisions are in contrast with those of the U.S. Supreme Court, which held in Branzburg v. Hayes that bad-faith grand jury subpoenas intended to disrupt reporters' relationships with their sources violate the First Amendment. In Leggett's case, the court overlooked attempts by law enforcement agencies to use the subpoena power to coerce Leggett to become a confidential informant and turned a blind eye to the policy, embodied in the First Amendment, favoring the dissemination of ideas in furtherance of the public's right to know. The Branzburg holding specifically proscribed such law enforcement tactics as violating the First Amendment.
Precisely because Texas has no shield law, Leggett's experience provides a useful context in which to analyze the state of the First Amendment-based reporter's privilege. Leggett has petitioned the U.S. Supreme Court for certiorari; if granted, the Court may fundamentally change the way that most lower courts have applied the First Amendment to subpoenas for the media and their records.
From Ink Slinger to Snitch
Leggett's story began at the arraignment of two suspected murderers and co-conspirators in Houston's Harris County Courthouse. Robert Angleton and his brother Roger were charged with murdering Robert's wife, Doris, after Roger was found in Las Vegas with typewritten notes outlining the murder and a tape recording of two men plotting it. Robert was a Houston millionaire and reputed bookie. Because Robert and Doris's marriage was unraveling, police believed that Robert wanted his wife dead so that she could not reveal the details about his lucrative bookmaking operation during the divorce proceedings.
In the midst of the publicity surrounding the state murder trial, Leggett obtained access to Roger in the Harris County jail through his attorney and recorded over forty hours of interviews. Shortly thereafter, Roger was found dead in his jail cell with a suicide note confessing to the murder and absolving Robert of any involvement in the crime. Eager for evidence to bolster its case against Robert, the Houston district attorney's office subpoenaed Leggett's taped interviews with his now-deceased brother. Leggett initially resisted the subpoena, fearing that her hard work in investigating the crime and getting what she considered an exclusive might be compromised. Eventually, she agreed to comply with the subpoena after the Houston district attorney assured her that (1) only those portions of the interview that were admissible and relevant would be disclosed during the trial, and (2) all copies of the tapes would be returned after the trial. After reviewing the tapes, the district attorney apparently found no new revelations and did not use the tapes at Robert's trial. The trial resulted in an acquittal on August 12, 1998, largely because of the exculpatory portions of the suicide note and a botched Houston police investigation, which revealed that Robert was actually a longtime police informant.
FBI Pressures Leggett
After the acquittal, the Houston prosecutor on the case, Chuck Rosenthal, apparently enlisted his wife, an FBI agent, to pursue Robert on various racketeering, tax evasion, bookmaking, and federal murder-for-hire charges. The FBI began its efforts to seek information from Leggett in July 2000. Although they knew that she was writing a book about the murder and the state trial, federal investigators approached Leggett about working as a confidential informant. The FBI offered Leggett a contract, promising money for her research but stipulating that the FBI would have final say before she could publish her book or otherwise disseminate her material. When Leggett declined, the U.S. attorney handed her a grand jury subpoena on the spot. Leggett complied with the subpoena and appeared before the grand jury on December 7, 2000, where she revealed information but not the names of her sources.
In June 2001, the U.S. attorney served Leggett with a second federal grand jury subpoena that compelled not only her testimony but also the surrender of all research, both originals and copies. Full compliance with that subpoena would have meant that Leggett would have to relinquish all of her research with no guarantee of recovering it. On July 6, 2001, the U.S. District Court for the Southern District of Texas denied Leggett's motion to quash the subpoena as an unconstitutional infringement of the First Amendment. Leggett unsuccessfully argued before Judge Melinda Harmon that the subpoena as issued would prevent her from continuing to work.
On July 18, 2001, the government served Leggett with another, identical subpoena. After a hearing on Leggett's second motion to quash, Judge Harmon issued a contempt order holding that there was absolutely no privilege allowing reporters to withhold any information, confidential or otherwise, in criminal cases. Judge Harmon dismissed as irrelevant any concerns that the DOJ had failed to follow its own guidelines regarding the issuance of subpoenas to the media in its dealings with Leggett.
Writer Goes to Jail
When Leggett went to jail two days later, the media's focus turned from the bizarre murder of Doris Angleton to the even stranger events that resulted in Leggett's incarceration. The press did not unanimously support Leggett's invocation of the reporter's privilege. Although some argued for her release on First Amendment grounds, others argued that the reporter's privilege only protects those associated with major media organizations, not freelancers like Leggett. But most commentators agreed that the DOJ's actions seemed unnecessarily harsh. Why did the DOJ want to deprive Leggett of the ability to work on her book? Wasn't this an unconstitutional prior restraint? Should the DOJ have negotiated with Leggett, as the Houston prosecutor did earlier, so that she could retain control over her material but at the same time give the prosecutors what they wanted?
At least one journalist speculated that the FBI and the U.S. attorney might have wanted to force Leggett to become an informant by threatening to deprive her of her material, ostensibly to prevent disclosure of their own bungled investigation. Leggett's attorney argued that the subpoena was just a fishing expedition. Because Robert Angleton was later indicted by another grand jury without the benefit of Leggett's research, the DOJ apparently did not need her information, lending even more suspicion to its motives. Nevertheless, one thing was clear: with the sheer breadth of media coverage buzzing about the Angleton murder and the dozens of reporters investigating Robert Angleton's past, the DOJ singled out Leggett. She was the only reporter to be subpoenaed in the case.
Some alleged that Leggett attempted to overcome the impossible by claiming the reporter's privilege, impossible because the federal courts, much less the state of Texas, have never recognized an absolute First Amendment-based reporter's privilege. Recent cases suggest that the courts are in the process of limiting the privilege's application even further. Indeed, the history of the reporter's privilege is, for the most part, one of defeat.
In the United States, the idea that a free press is necessary to a functioning democracy is almost axiomatic, but the extent of press freedom has been fiercely debated from the nation's beginning. Newspeople, including James Franklin, the brother of Benjamin, have refused to reveal the names of confidential sources since colonial times. Indeed, the U.S. Constitution was ratified only after proponents added the First Amendment.
The reporter's privilege was invoked by name for the first time in 1848, when the New York Herald's John Nugent refused to reveal the source of a secret copy of the proposed treaty with Mexico. Congress held him in contempt until a public outcry secured his release. Reporters attempted to carve out a testimonial privilege akin to the attorney/client privilege, claiming that, unless one was granted, the press could not adequately safeguard the people against a potentially despotic government and business culture.
The legal system, however, was bound to reject reporters' early claims to a privilege. Although the truth-seeking interest in discovering evidence might have been laid aside to further the specific interests of the relationships between doctors and patients or lawyers and clients, the public's relationship with the press was too tenuous a connection to subordinate the rules of evidence. Furthermore, society was not yet ready to accord the press any special rights because the need was not apparent. As James Madison put it, the press had ample means to right any wrongs that might encroach upon its function as the guardian of good government and fair play: it could publish stories about it.
But it soon became evident that government, and specifically law enforcement agencies, grew so powerful that Madison's notion of a self-preserving press was outmoded. Many commentators have argued that the power of the press must, as a necessary function of democracy, increase with the growth of the government and other powerful institutions. 19 The press needed a testimonial privilege to further its function as a check on power.
By the end of the nineteenth century, the press garnered enough political clout and positive public opinion to pursue its desire for a testimonial privilege in the political arena rather than the courtroom. In 1896, Maryland adopted the first state law granting a testimonial privilege to reporters. Other states were slow to follow but, by 2000, thirty- one states had shield laws offering various levels of protection. However, in the other nineteen states, including Texas, reporters were protected only by the First Amendment. The courts did not acknowledge a First Amendment protection against compelled disclosure of confidential sources until 1958 when the Second Circuit acknowledged for the first time that the compulsory disclosure of a journalist's confidential sources might abridge press freedom by limiting the availability of news. Although the newspaper lost that case, it was a clear victory for the proponents of the reporter's privilege: the courts had finally recognized that the disclosure of confidential information had First Amendment implications.
Reporters' Close Ties to Cops
For most of the nation's history, reporters and the police were bedfellows. Crime made for good copy and reporters relied on the police for their stories, fostering an amicable, if not symbiotic, relationship. But starting with the labor movements in the 1930s, continuing with the civil rights movement in the 1950s and 1960s, and culminating with the Watergate scandal in the 1970s, the relationship between the media and law enforcement agencies disintegrated. Various advocacy groups viewed the police with contempt and suspicion but began to trust the media. The stories that made the best copy were increasingly about police abuse and corruption. Law enforcement agencies, deprived of the information necessary to carry out their function, began compelling the press to testify and to turn over documents, notes, footage, photographs, unpublished materials, and the names of sources.
A public debate soon followed about freedom of the press versus the need to prosecute criminals. The media argued that prosecutors used their broad evidentiary powers to circumvent the protections of the Fourth and Fifth Amendments by subpoenaing the press. Because reporters, unlike the police, were not required to obtain warrants, they could break in, eavesdrop, entrap, and promise confidentiality to get information by using methods that the police could not. Police officers and prosecutors invoked the nineteenth-century rationale to support denial of a reporter's privilege: the truth-seeking role of justice demanded every person's evidence.
DOJ Adopts Guidelines
The first official response to the public debate came from the DOJ. In a 1970 speech to the American Bar Association, Attorney General John Mitchell said that the "bitter dispute [regarding the subpoenaing of the press] has already produced seeds of suspicion and bad faith." The same year, the DOJ, under Mitchell's direction, instituted internal guidelines for federal prosecutors. The guidelines were designed to prohibit federal law enforcement officers from annexing the media as an investigative arm and relying instead on their own investigative efforts to accumulate evidence. The DOJ guidelines, which are still in effect today, reflect the fundamental democratic value recognized in Garland v. Torre28 that protection of newsgathering efforts is essential to preserving a constitutionally protected free press.
Specifically, the DOJ guidelines require direct authorization from the U.S. attorney general before a subpoena may be served on a reporter or other media representative. The issuing U.S. attorney must then balance the First Amendment interests against the need for effective law enforcement. During this balancing process, the U.S. attorney should attempt to obtain the information from nonmedia sources. For criminal actions, the U.S. attorney must determine whether reasonable grounds exist to believe that the information sought is essential to the finding of guilt or innocence. 32 Finally, any reluctance by the press should be countered with negotiations to facilitate a solution in the interest of press freedom. Although failure to follow the guidelines may constitute grounds for disciplinary action, they are not intended to create or recognize any legally enforceable rights.
Branzburg: Did They or Didn't They?
In Branzburg v. Hayes, decided two years after the DOJ guidelines were instituted, the U.S. Supreme Court ruled that a reporter who was working on an ongoing series about the Black Panthers could not refuse to appear before a grand jury that was investigating their allegedly criminal activities. The majority declined to agree with one reporter's assertion of an absolute First Amendment privilege. The Court specifically held that there was no privilege that allowed reporters to refuse to appear before a grand jury or to refuse to answer questions about crimes that they may have witnessed. Citing the public good derived from effective law enforcement and the fact-finding purpose of the grand jury, Justice White, writing for the majority, opined that any incidental burden on newsgathering created by compelled testimony before a grand jury was too remote to protect and that no special showing needed to be made before a grand jury could subpoena the press.
However, the majority opinion specifically held that the First Amendment somewhat protected a journalist's cultivation of confidential sources as a form of gathering information. The majority opinion held that "grand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. . . . We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth." But this seemingly narrow protection in the context of a grand jury proceeding was supported only by a minority of the Court. Justice Powell, although signing the majority opinion, wrote his own concurrence in which he agreed with the dissenters and advocated a balancing of First Amendment versus law enforcement interests similar to that required by the DOJ guidelines. In terms of the reporter's privilege, Justice Powell's concurrence is the key to Branzburg:
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. [. . .] 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 issued. 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.
Powell, to be absolutely clear, pointed out that "[Justice White's majority opinion does] not hold . . . that state and federal authorities are free to annex the news media as an investigative arm of the government." The fact that he advocated the use of a balancing test even in the context of a grand jury made the narrow language of the majority suspect. With an unusual majority made up of four justices plus Justice Powell concurring, the actual holding of Branzburg has been questioned from the beginning. Justice Stewart has called it a case that "rejected a reporter's privilege by a vote of 4½ to 4½."
What Did the Court Mean?
Justice Powell's concurrence went further than the majority's limited holding. Specifically, where the majority indicated that a journalist could only quash a subpoena issued in bad faith, Powell would bar good-faith subpoenas seeking remote and tenuous information. Early commentators were confused by the fact that Powell was the deciding vote and seemingly did not agree with the limited holding of the majority. One even surmised that Branzburg was a five-four victory for the press, with Justice Powell plus the four dissenters agreeing on the existence of a qualified reporter's privilege in the context of the grand jury.
Despite the initial confusion, the Powell balancing test, which took into account the relevance and materiality of the information and the ability to otherwise obtain it, eventually became the standard framework for a First Amendment inquiry into media subpoenas. Confusing as it may be, the Branzburg decision is the foundation for judicial recognition of a First Amendment-based reporter's privilege.
In 1990 and 1991, the U.S. Supreme Court briefly revisited its Branzburg decision, noting in dicta that no special showing was needed before a grand jury could subpoena a reporter to testify. But these brief statements have done little to clarify the Court's original holding in Branzburg and the lower courts have been left to sort it out. Since Branzburg, the Court has not heard any reporter's privilege cases and specifically denied certiorari in cases in which lower courts recognized a qualified privilege, thus, passively at least, acknowledging the presence of one. If Leggett's petition to the U.S. Supreme Court is accepted, it will be the first reporter's privilege case before the Court in thirty years.
Tangled Up in Branzburg: Lower Federal Courts Weigh In
Shortly after Branzburg, lower federal courts were quick to interpret the U.S. Supreme Court's holding that reporters have no absolute First Amendment privilege as an acknowledgement of a qualified one. Although some portions of Branzburg were explicit, the unusual split plus Justice Powell's fence-straddling concurrence meant that lower courts would have to define the extent of the privilege. Despite the limited holding in Branzburg, within a decade most of the appellate courts had consistently found the existence of a First Amendment reporter's privilege in both civil and criminal cases. But during the 1990s, the lower courts began to rethink the application of the privilege, culminating in the Fifth Circuit's holding in a pair of cases that there is no applicable constitutional protection in either grand jury proceedings or criminal cases.
Despite being warned against parsing the application of the First Amendment, lower courts continued to expound, reasoning, inter alia, that the holding in Branzburg was limited to grand juries, thereby allowing the reporter's privilege to flourish in other contexts. Courts gave great weight to unfettered newsgathering freedom. Many courts latched on to Justice Powell's concurrence or Justice Stewart's dissent for a generally applicable three-part test to determine when disclosure would not impede the First Amendment. But factual distinctions led to divergent utilization of the categories, creating shifts in reasoning and varied application of the privilege among the circuits.
What Is the News?
The lower courts focus primarily on three factors: whether the sources sought are confidential, whether the person asserting the privilege is a journalist, and whether the information sought is "news." In von Bulow v. von Bulow, the Second Circuit held that any person who intended to distribute information to the public through activities commonly associated with the dissemination of news was a journalist and could claim the reporter's privilege. The key was the reporter's intent at the time of newsgathering. This definition has been held to include paid employees of major newspapers and freelance writers, like Leggett, but some courts have specifically excluded freelance book authors. The Third Circuit made a content determination of what constitutes news, holding that "hype" is not news but advertising and entertainment. Some commentators have criticized judicial attempts to define "news" because news and entertainment are becoming intertwined and because of the danger of making content-based determinations with regard to speech.
Reporter's Privilege More Likely in Civil Cases
Generally, the lower courts are more accepting of a reporter's privilege in civil cases than in criminal ones. This stems from balancing the heightened interests of a criminal defendant facing incarceration with the "remote" threat that disclosure could impinge on the First Amendment. However, the criminal/civil distinction in the development of the reporter's privilege is anomalous: no other testimonial privilege depends for its existence on the nature of the case in which the testimony is deemed relevant. Despite this oddity, a majority of circuits have recognized that journalists possess a First Amendment-qualified privilege against compelled disclosure of their newsgathering activities in the context of criminal proceedings; the minority have either declined to recognize any privilege or have so weakened the privilege that its protections are nonexistent.
Throughout the 1980s, even in the context of criminal proceedings where Branzburg arguably left only the narrowest of protection, courts found for the press, quashing subpoenas in criminal cases at a rate of three to one. But during the 1990s, the courts quashed only seven subpoenas out of twenty criminal cases in which the press was subpoenaed, a rate of one in three.
Because the specific facts of Branzburg involved the assertion of the privilege in the grand jury context, the few challenges made to a grand jury subpoena have usually failed. Only in those grand jury cases where state statutes offer more protection or the prosecutor appears to have acted in bad faith does the First Amendment prevent compelled disclosure. However, most courts apply or at least refer to the balancing test, even in the context of a grand jury. In grand jury cases, courts also looked at whether the DOJ properly applied its internal guidelines as a factor in deciding whether a subpoena impinged on the First Amendment.
Led by the Sixth Circuit, which has never recognized that Justice Powell's concurrence supported the existence of a qualified privilege in any context, courts began limiting the application of the three-part test gleaned from Branzburg and the scope of the reporter's privilege generally. Justice Douglas predicted such a shift in his Branzburg dissent, noting that any qualified privilege was susceptible to change with society's changing attitudes toward the press and law enforcement.
Fifth Circuit Narrows Privilege
The Fifth Circuit narrowed the privilege's application a few years before Vanessa Leggett appealed her contempt citation.
In 1980, the Fifth Circuit recognized a qualified First Amendment-based privilege protecting a reporter's right to refuse to disclose the identity of confidential informants in Miller v. Transamerican Press. The court applied the standard three-part test from Branzburg, holding that the reporter's privilege depends on the relevancy of the information, its availability from other sources, and a compelling interest. The opinion noted that "forced disclosure of journalists' sources might deter informants from giving their stories to newsmen, except anonymously," chilling the ability of reporters to gather news. However, the court noted that Branzburg limited the application of the privilege: reporters were required to disclose their research to a grand jury unless "the grand jury power was abused."
The district courts in the Fifth Circuit applied the three-part test adopted by the Miller court. In United States v. Smalley, a court quashed a criminal defendant's subpoena seeking a television station's outtakes. The court in In re CBS invalidated a production order and found a criminal contempt citation to be inappropriate, holding that an injunction that barred a broadcast concerning the defendants constituted an unconstitutional prior restraint. Some courts relied on the second prong of the Miller test and held that the party issuing a subpoena must exhaust all other means of obtaining the information before querying a reporter.
In 1998, however, the Fifth Circuit began limiting the reporter's privilege. With searing language suggesting that the privilege might not exist at all, the court rejected the existence of a First Amendment privilege in the context of criminal cases when the information sought was nonconfidential. In United States v. Smith, a local television station interviewed the defendant before his trial. When the prosecutor subpoenaed the aired and unaired segments of the interview, the station refused to comply with regard to the unaired portions. The court incorrectly held that Branzburg "explicitly rejected a qualified newsreporters' privilege shielding nonconfidential source information from grand juries," citing a six-page stretch in Branzburg where the word "qualified" appears only twice, and neither time for the proposition that a generally applicable qualified privilege was being rejected. The Fifth Circuit's error is evident when the Smith decision is contrasted with the Branzburg majority's specific holding that the grand jury must operate "within the confines of the First Amendment."
After three decades of judicial expositions on the application of a qualified First Amendment privilege, newsgatherers in the Fifth Circuit and elsewhere were still left to guess whether and to what extent the courts will protect them. In light of the general lack of uniformity among the circuits, Justice Douglas's warning in Branzburg that "[s]ooner or later any test which provides less than blanket protection to beliefs and associations will be twisted and relaxed so as to provide virtually no protection at all" seems especially poignant.
Leggett Appeals to the Fifth Circuit
The Fifth Circuit's narrow view of the privilege articulated in Smith eviscerated the First Amendment protection for nonconfidential information in criminal cases. But in the context of confidential information, district courts in that circuit had previously applied the Powell balancing test in criminal cases. Leggett's attorney, arguing before the Fifth Circuit that the First Amendment protected reporters from having to disclose both confidential and nonconfidential information, asked the court to reconsider its Smith holding. The three-judge panel flatly told the lawyer that he was "swimming upstream." The Fifth Circuit affirmed Judge Harmon's civil contempt order, noting that whatever First Amendment protection existed otherwise, in the context of a grand jury that protection had reached its nadir. The panel held that reporters are no different from the general public before a grand jury and, if they have information about a crime, the same governmental interest in law and order that may compel the average citizen to testify in front of a grand jury can also compel a member of the press. The government argued that Leggett was not a reporter at all because she was virtually unpublished and not employed by a major newspaper. The court dismissed this argument by assuming that Leggett was a reporter, but noted that the Fifth Circuit used the von Bulow definition of a reporter, i.e., one who intends to disseminate information to the public at the time of newsgathering.
The Fifth Circuit made two notable errors. First, in support of its holding that no First Amendment protection existed in grand jury investigations, the court stated that "no circuit court has recognized a qualified testimonial privilege in the context of a criminal grand jury." But the Third Circuit had affirmed the decision in In re Williams that a qualified First Amendment reporter's privilege prohibited compelled disclosure of confidential sources in the context of a grand jury and other courts had implicitly recognized application of the privilege in the grand jury context.
Second, relying on Smith, the Fifth Circuit held that only governmental "harassment or oppression" would obviate a reporter's obligation to appear before a grand jury. Even though the subpoena was acknowledged as too broad, the court held that it was not so broad as to be "oppressive." Although the court cited Branzburg's holding that the reporter's privilege is applicable when a subpoena is issued in bad faith, it did not apply the Powell balancing test to determine the level of First Amendment impingement. In contradiction with the language of Branzburg, the Fifth Circuit found no First Amendment protection for Leggett. The court used the language of Rule 17(c) of the Federal Rules of Criminal Procedure to describe what would constitute an inappropriate badfaith subpoena. However, Rule 17(c) is a different standard than the First Amendment interest outlined in Branzburg. Rule 17(c) bestows broad evidentiary authority on grand juries. The U.S. Supreme Court has held that under Rule 17(c), a grand jury may subpoena any information or testimony that has a reasonable possibility of relating to the subject of the grand jury's investigation. The Fifth Circuit cited this language in holding that the subpoena issued to Leggett was properly within the scope of the grand jury's authority. If this were the proper inquiry, it would make hollow the U.S. Supreme Court's instruction in Branzburg that a grand jury must operate only within the confines of the First Amendment.
What the Branzburg Court meant by declaring that the First Amendment would not tolerate the use of the subpoena power to harass the media must have been more than what Rule 17(c) prohibits–unreasonable and oppressive subpoenas. If not, it would have been superfluous for the Court to mention it. The Fifth Circuit failed to properly analyze the purpose of the privilege, which is not to protect individual reporters but to protect the public, as the check on institutional and government power. In this sense, the purpose of the privilege is to protect the public's right to know. The Fifth Circuit should have applied the balancing test from Branzburg to address the First Amendment concerns, especially in light of the DOJ's conduct.
Who Will Shield the Press from the Prosecutor's Sword?
The most notable omission from the Fifth Circuit's opinion was a review of the DOJ's conduct, which is surprising considering that the DOJ apparently was using the subpoenas to coerce Leggett into becoming an informant. An inquiry into the DOJ's actions would not have been unprecedented. In In re Williams, the court held that the prosecutor had not made a showing adequate to overcome the First Amendment-based reporter's privilege even in the context of a grand jury. In other grand jury cases, courts have granted motions to quash, noting that the prosecutors failed to follow their internal guidelines with regard to subpoenaing the press. As recently as 1996, the U.S. District Court for the Southern District of Texas held that a prosecutor "must fulfill his obligation to exhaust sources even though he fears that the investigation may be time consuming, costly, and unproductive."
In Branzburg, the U.S. Supreme Court reasoned that "the bulk of disagreements and controversies between the press and federal officials" would be handled internally by the U.S. attorney general through the DOJ's own regulations. In light of the recent decisions in the Fifth Circuit and others that abrogate the First Amendment-based privilege, this reliance on law enforcement's discretion is misplaced. Zealous advocacy requires prosecutors to use every legal means to prosecute their case. If the courts allow them, they will use the press in any way deemed constitutional to pursue their function.
DOJ Ignores Its Own Guidelines
In Leggett's case, the DOJ admitted that it failed to follow its own guidelines. It failed to seek approval from Attorney General John Ashcroft or to negotiate with Leggett in good faith to avoid the harsh application of an extended contempt citation. The Branzburg majority held that one impermissible use of the subpoena would be to disrupt a newsman's relationship with his sources. Even though Leggett's subpoena fit squarely within that caveat, the Fifth Circuit declined to conduct the proper inquiry. The question of why the Fifth Circuit did not conduct the proper review is made more alarming in light of the fact that a newly convened grand jury indicted Robert Angleton without the testimony or cooperation of Vanessa Leggett. Leggett's incarceration, in hindsight, seems less a punitive function of the court system's policy favoring disclosure and more a punishment for her refusal to cooperate with law enforcement.
The Fifth Circuit missed this opportunity to properly apply Branzburg in the grand jury context and find that it violates the First Amendment to compel a reporter to become an informant by threatening the reporter's research and source relationships with broad subpoenas.
A Coup de Grâce
The Fifth Circuit's decision, if affirmed by the U.S. Supreme Court, will be the coup de grâce for First Amendment protection in criminal cases. It will usher in a new era in which the probability of being called into court will become a prominent factor in editorial decisions regarding what to print or broadcast. The resulting chilling effect could stifle the free flow of information and curb the public's right to know. It is up to the U.S. Supreme Court to find that the Fifth Circuit's abrogation of the First Amendment-based reporter's privilege was unconstitutional.
Leggett's Petition to the U.S. Supreme Court
On December 31, 2001, Leggett filed her petition for certiorari with the U.S. Supreme Court. Among her arguments is that the Fifth Circuit misread Branzburg in denying any First Amendment protection for the press in the context of a grand jury investigation. The petition not only argues that Branzburg requires First Amendment protection from subpoenas used to disrupt a reporter's confidential source relationships, but also that it mandates a balancing of interests even in the context of the grand jury. Leggett also argues that the case-by-case application of a balancing test is the only way to ensure protection of the First Amendment. Furthermore, she contends that the subpoena also constituted a prior restraint because it prevented her from working on her book.
In many ways, the Fifth Circuit's ruling in Leggett's case is reminiscent of nineteenth-century judicial hostility toward the press, when the courts refused to recognize a protected relationship between the reporter and the public because privileges, they reasoned, were designed to protect privacy. Today, however, privileges are granted to serve greater societal interests. For instance, the medical peer review privilege does not serve the doctor/patient relationship but rather the general health and welfare. States that have enacted reporter's privilege statutes recognize that privileges can be justified on grounds other than privacy. The U.S. Supreme Court should recognize that the relationship between the public and its press is a special cornerstone of our system of government, requiring protection of unfettered newsgathering to further the public interest. Abrogation of the privilege would result in tangible harms to the public, including the appearance that reporters are investigators for the government, as opposed to independent newsgatherers serving the public interest.
The Reporter's Dilemma
With the current state of the eroded reporter's privilege, the reporter's dilemma is a palpable one. The ethics of their profession prevent reporters from divulging information obtained in confidence. Reporters are marked as unreliable by sources if they reveal confidences, inhibiting their ability to gather and disseminate accurate and breaking news. If reporters reveal confidential sources, they may be liable in damages to the source for breaking promises of confidentiality. It is a Catch 22: reporters are put in jail if they refuse to reveal their sources and information; if they do reveal their sources, they are monetarily liable for breaching a contract of confidentiality.
Many have dismissed Leggett's lack of cooperation as obstinance or a clever marketing ploy by a savvy young crime writer. But that characterization ignores her significance as a symbol of the press's function as a guardian of democracy. Leggett's investigative efforts to uncover what really happened, including the truth about the Angleton murder, the botched state prosecution, and the ties of Houston's power elite to the crime, represent the true "fourth estate" function of the press in a democracy as the purveyors of systemic transparency. It is precisely this function that most commentators agree the First Amendment was designed to facilitate.
In the context of a grand jury subpoena, the proper inquiry should be whether the actions by federal law enforcement officials to subpoena a reporter are designed to harass and disrupt the reporter's relationship with his or her confidential sources. If the answer is yes, the reporter should not be compelled to testify; if no, the court should balance the competing First Amendment interest with law enforcement's interest in effective prosecution.
In this country, we say we will set ten guilty men free to prevent even one innocent man from going to jail. It is alarming that the courts are not willing to recognize a First Amendment check against prosecutorial misconduct to protect innocent journalists. The deep-rooted prejudices that courts have against the press must sometimes be overcome to protect greater constitutional guarantees. With a proper balance, it is possible for the First and Sixth Amendments to co-exist. For Vanessa Leggett, the unwillingness of the Fifth Circuit to scrutinize the DOJ's conduct led to a five-month jail term. Leggett may be called to testify at Angleton's federal trial, but she still plans to protect her sources' confidences. If called to testify, without clear direction from the U.S. Supreme Court on whether she may properly invoke the reporter's privilege, she could end up in jail again.
Branzburg and most of the lower federal courts have acknowledged a special relationship among reporters, newsgathering, and the First Amendment in the grand jury context. Vanessa Leggett was a victim of just the type of harassment proscribed by the First Amendment; it is now up to the Court to properly find that the subpoena power has limits when unconstitutionally wielded against the media.
Reprinted by permission of the American Bar Association. From Communications Lawyer, Volume 19, Number 4, Winter 2002. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Daniel Scardino (email@example.com) is an associate at Jackson Walker L.L.P. in Austin, Texas. Jackson Walker partners Bob Latham and Charles Babcock and associate John Edwards filed amicus briefs for several reporters' associations in support of Vanessa Leggett's Fifth Circuit and U.S. Supreme Court appeals, discussed in this article.
1. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, pt. I, ch. 9 (1835).
2. 28 U.S.C. § 1826.
3. Texan Is Indicted in Case That Landed Writer in Jail, N.Y. TIMES, Jan. 26, 2002, available at http://www.nytimes.com/2002/01/26/national/26TEXA.html.
4. Branzburg v. Hayes, 408 U.S. 665 (1972).
5. See Skip Hollandsworth, The Inmate, TEX. MONTHLY, Dec. 2001, available at http://www.texasmonthly.com/mag/issues/2001-12-01/reporter-3.php.
6. See Mike Anton, In Lockup, Crime Writer Ponders Strange Plot Twist, L.A. TIMES, Oct. 29, 2001.
7. See Dave Kopel, Redefining Justice, NAT'L REV. ONLINE, Aug. 27, 2001, available at www.nationalreview.com/kopel/kopelprint082701.html ("Politically ambitious prosecutor Chuck Rosenthal was dissatisfied with the result. His wife Cindy is a Houston FBI agent and the feds started investigating Angleton."); see also Hollandsworth, supra, note 5. Leggett had been interviewing any connection with Robert Angleton, including his connections with the Houston police as an informant and his underworld bookie connections in New York. Id.
8. 28 C.F.R. § 50.10. These guidelines require approval from the Attorney General of the United States and a showing that the information sought is essential to the prosecution's case and cannot be obtained from nonpress sources. Id.
9. See Michael Ventura, Open Letter to Vanessa Leggett, AUSTIN CHRON., Aug. 31, 2001, available at www.austinchronicle.com/issues/dispatch/2001-08-31/cols_ventura.html. But see Lana Whited, Practicing Journalism Without a License (Aug. 17, 2001), available at www1.roanoke.com/columnists/whited/3052.html.
10. See Hollandsworth, supra note 5.
11. See id. (Hollandsworth noted that he himself had been covering the Angleton case from the beginning and that the federal prosecutor never subpoenaed him). The Houston prosecutor in the state case, having reviewed some of Leggett's material pursuant to the state subpoena, doubted that any of Leggett's material would be useful to the federal prosecutor. See Kopel, supra note 7.
12. "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic governments." George Mason, Virginia Bill of Rights, art. I (June 12, 1776).
13. 23 CHARLES ALANWRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5426, at 715 (1980).
14. See Leonard W. Levy, The Politics of the Bill of Rights, in THE ENCYCLOPEDIA OF AMERICAN POLITICAL HISTORY, 104Â–25 (Jack P. Greene ed., 1984).
15. Ex Parte Nugent, 18 Fed. Cas. 471 (D.C. Cir. 1848); see also Stephen Bates, The Reporter's Privilege, Then and Now, 5 (Apr. 2000), John F. Kennedy School of Government, Harvard University, available at www.ksg.harvard.edu/presspol/publications/pdfs/100831%20R-23.pdf.
16. See BURTON J. BLEDSTEIN, THE CULTURE OF PROFESSIONALISM, 100Â–01 (1978) ("The culture of professionalism tended to cultivate an atmosphere of constant crisis –emergency–in which practitioners both created work for themselves and reinforced their authority by intimidating clients.").
17. See WRIGHT & GRAHAM, supra note 13, § 5426, at 715Â–17.
18. See Bates, supra note 15, at 15 ("[The press has] in Madison's words, 'the necessary constitutional means and personal motives to resist encroachments.' [. . .] Journalists are uniquely able to make their screams of pain heard.").
19. Lisa Kloppenberg, Disclosure of Confidential Sources in International Reporting, 60 S. CAL. L. REV. 1631, 1656 (1987).
20. See Bates, supra note 15, at 5.
21. See James C. Goodale, Reporter's Privilege, in 3 COMMUNICATIONS LAW 2001, 691 (2001).
22. Garland v. Torre, 259 F.2d 545, 548Â–49 (2d Cir. 1958).
23. See Bates, supra note 15, at 7.
24. See id.
25. See id.
26. John N. Mitchell, Free Press and Fair Trial: The Subpoena Controversy, 59 ILL. B.J. 282Â–97 (1970).
27. See Goodale, supra note 21, at 694.
28. 259 F.2d 545, 548Â–49 (2d Cir. 1958).
29. See 28 C.F.R. § 50.10 (2000).
31. See 28 C.F.R. § 50.10(f)(2), (f)(3) (requiring that federal authorities demonstrate that any information sought–not just confidential source information–is "essential to the successful completion of the litigation in a case of substantial importance," and cannot be obtained from "alternative nonmedia sources").
32. See Goodale, supra note 21, at 694Â–95.
33. See id. at 695.
34. Branzburg v. Hayes, 408 U.S. 665 (1972).
35. Id. at 684.
37. See Erwin Chemerinsky, Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering, 33 U. RICH. L. REV. 1143, 1145Â–146 (2000) ("Although the Court was correct that there is not empirical proof of how many sources would vanish without assurances of confidentiality, this is something that would be impossible to measure. In fact, the Court has accepted the importance of other privileges, such as the attorney-client privilege, even though it is impossible to prove how many conversations would not occur without the promise of confidentiality.") (citations omitted).
38. See Branzburg, 408 U.S. at 690Â–99.
39. Id. at 681.
40. Id. at 707Â–08.
41. Id. at 709Â–10 (Powell, J., concurring) (emphasis added).
42. Id. at 709 (Powell, J., concurring).
43. Some commentators have incorrectly coined Branzburg a "plurality" opinion. See Robert T. Sherwin, "Source" of Protection: The Status of the Reporter's Privilege in Texas and a Call to Arms for the State's Legislators and Journalists, 32 TEX. TECH L. REV. 137, 144 (2000).
44. J. Stewart, Or of the Press, 26 HAST. L.J. 631, 635 (1975).
45. See Bates, supra note 15, at 9.
46. See id. at10.
47. See Branzburg, 408 U.S. at 743 (Stewart, J., dissenting) ("Accordingly, when a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.").
48. See Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990); Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).
49. See, e.g., United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816 (1983); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); LaRouche v. NBC, 780 Â°Â 21 F.2d 1134 (4th Cir.), cert. denied, 479 U.S. 818 (1986); Miller v. Transamerican Press, 621 F.2d 721(5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125 (1973); Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986), cert. denied, 483 U.S. 1021 (1987).
50. See WRIGHT & GRAHAM, supra note13.
51. See generally id. at 746; see also Bates, supra note 15; Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). But see Storer Communications, Inc. v. Giovan, 810 F.2d 580, 583Â–84 (6th Cir. 1987) (rejecting interpretation that Justice Powell's concurrence recognizes a qualified privilege).
52. Branzburg, 408 U.S. at 704.
53. See id. at 712Â–23; see also Bischoff v. United States, 25 Media L. Rep. 1286 (E.D. Va. Sept. 20, 1996) (granting reporter's motion to quash a deposition subpoena, finding that the three-part test first articulated by Justice Powell in Branzburg had not been met).
54. Sherwin, supra note 43, at 150.
55. See Branzburg, 408 U.S. at 701Â–12.
56. 811 F.2d 136 (2d Cir.), cert. denied, 481 U.S. 1015 (1987).
57. See Shoen v. Shoen, 5 F.3d 1289, 1293Â–94 (9th Cir. 1993); but see FLA. STAT. § 90.5015(1)(a) (under the Florida shield statute, book authors who are not also professional journalists are not covered).
58. See In re Madden, 151 F.3d 125 (3d Cir. 1998) (adding a requirement that the information gathered must be news, not "hype").
59. See generally Clay Calvert, And You Call Yourself a Journalist?: Wrestling with a Definition of "Journalist" in the Law, 103 DICK. L. REV. 411, 429 (1999); Daniel A. Swartwout, In Re Madden: The Threat to New Journalism, 60 OHIO ST. L.J. 1589, 1589 (1999).
60. See Goodale, supra note 21, at 723Â–24.
61. See, e.g., United States v. Larouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) (qualified privilege protects disclosure of unpublished information in criminal cases); United States v. Burke, 700 F.2d 70, 76Â–77 (2d Cir.) (same), cert. denied, 464 U.S. 816 (1983); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (qualified privilege protects confidential sources and unpublished information in criminal cases), cert. denied, 449 U.S. 1126 (1981); Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir. 1975) (qualified privilege protects confidential sources in criminal cases), cert. denied, 427 U.S. 912 (1976); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (same), cert. denied, 483 U.S. 1021 (1987).
62. See, e.g., Reporters Committee for Freedom of the Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1049Â–50 (D.C. Cir. 1978), cert. denied, 440 U.S. 949 (1979); In re Shain, 978 F.2d 850, 853Â–54 (4th Cir. 1992); United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); Storer Communications, Inc. v. Giovan, 810 F.2d 580, 584Â–85 (6th Cir. 1987).
63. See Goodale, supra note 21, at 739Â–54.
64. See id.
65. See, e.g., Storer Communications, 810 F.2d at 580 (reporter has no First Amendment privilege to withhold information sought by grand jury where confidential source relationship is not implicated); Scarce v. United States, 5 F.3d 397 (9th Cir. 1993), cert. denied, 114 S. Ct. 685 (1994) (rejecting application of the privilege where case closely resembled the facts in Branzburg, noting that there was no evidence in the record of prosecutorial "bad faith"); In re Grand Jury Subpoena Am. Broadcasting Companies, Inc., 947 F. Supp. 1314 (E.D. Ark. 1996) (rejecting argument that state law applied reasoning that federal law controlled in cases involving federal grand jury; court noted that even if privilege existed, it could be overcome by applying the balancing test); In re Grand Jury Witness Subpoena of Abraham, 634 N.E.2d 667 (Ohio Ct. App. 1993) (reporter did not have First Amendment or state constitutional privilege to refuse to testify under subpoena before grand jury regarding nonconfidential, nonsource material that had already been published in interview with individual under criminal investigation); In re Letellier, 578 A.2d 722 (Me.1990) (reporter did not have constitutional privilege to refuse to comply with grand jury subpoena commanding him to turn over unbroadcast portions of videotaped, nonconfidential interview).
66. See, e.g., In re Williams, 766 F. Supp. 358 (W.D. Pa. 1991), aff'd by equally divided court, 963 F.2d 567 (3d Cir. 1992) (en banc) (quashing grand jury subpoena seeking confidential information); In re Grand Jury 95Â–1, 59 F. Supp. 2d 1 (D.D.C. 1996) (implicitly recognizing First Amendment protection in grand jury context for confidential information, but explicitly rejecting a reporter's privilege for nonconfidential information). Recently, an Arizona state court quashed a grand jury subpoena holding that the Arizona state shield law prohibited compelled disclosure of confidential news sources. See Goodale, supra note 21, at 1131.
67. See Goodale, supra note 21, at 1131.
68. See, e.g., Scarce, 5 F.3d at 397 (rejecting application of the privilege where case closely resembled the facts in Branzburg; noting that there was no evidence in the record of prosecutorial "bad faith"); United States v. Long, 978 F.2d 850 (4th Cir. 1992) (holding that the government had followed proper procedures for securing authorization for the subpoenas and was unable to find an alternative source for the information).
69. See Storer Communications, 810 F.2d at 580.
70. See Jane E. Kirtley, The Vanishing Reporter's Privilege: What's Gone, What's Left, in LIBEL & NEWSGATHERING LITIGATION–GETTING & REPORTING THE NEWS 1998, 357 (Practising Law Institute 1998).
71. See Branzburg v. Hayes, 408 U.S. 665, 720 (1972) (Douglas, J. dissenting) ("Perceptions of the worth of state objectives will change with the composition of the Court and with the intensity of the politics of the times.").
72. 627 F.2d 721, 725 (5th Cir. 1980) (affirming an order compelling disclosure, but issuing a protective order limiting disclosure to counsel).
73. Id. at 726.
74. Id. at 725.
76. 9 Media L. Rep. 1252 (N.D. Tex. 1983).
77. In re CBS, Inc., 570 F. Supp. 578 (E.D. La. 1983).
78. See Lenhart v. Thomas, 944 F. Supp. 525, 529Â–30 (S.D. Tex. 1996).
79. United States v. Smith, 135 F.3d 963 (5th Cir. 1998).
80. Id. at 966Â–67.
81. Id. at 968 (citing Branzburg v. Hayes, 408 U.S. 665, 702Â–08 (1972)). The Fifth Circuit misread Branzburg. The Branzburg court, commenting on one of the reporter's claims to a "conditional" privilege, held that construction of that reporter's conditional privilege was unworkable. Branzburg, 408 U.S. at 702.
82. See Branzburg, 408 U.S. at 708.
83. See id. at 720 (Douglas, J., dissenting).
84. See Lenhart v. Thomas, 944 F. Supp. 525, 529Â–30 (S.D. Tex. 1996); Campbell v. Klevenhagen, 760 F. Supp. 1206 (S.D. Tex. 1991).
85. In re Grand Jury Subpoenas, No. 01Â–20745 (5th Cir. Aug. 17, 2001) (The appellate court noted that the reporter's privilege "is at its apex in the context of civil cases where the disclosure of confidential sources is at issue," but is "far weaker in criminal cases, reaching its nadir in grand jury proceedings.").
87. In fact, Vanessa Leggett was a published writer. She has worked closely with law enforcement agencies in training young police recruits at the Criminal Justice Training Center at the University of Houston. She was invited by the FBI in 1999 to present a research paper on parenticide that was later included in a DOJ book on The Varieties of Homicide and Its Research.
88. In re Grand Jury Subpoenas, No. 01Â–20745 (5th Cir. Aug. 17, 2001).
90. In re Williams, 766 F. Supp. 358 (W.D. Pa. 1991), aff'd by equally divided court, 963 F.2d 567 (3d Cir. 1992) (en banc) (quashing grand jury subpoena seeking confidential information); see also In re Grand Jury 95Â–1, 59 F. Supp. 2d 1 (D.D.C. 1996) (implicitly recognizing First Amendment protection in grand jury context for confidential information, but explicitly rejecting a reporter's privilege for nonconfidential information).
91. In re Grand Jury Subpoenas, No. 01Â–20745 (5th Cir. Aug. 17, 2001).
93. 18 U.S.C.A. Rule 17(c).
94. United States v. R. Enter., Inc., 498 U.S. 292 (1991).
95. See Branzburg v. Hayes, 408 U.S. 665, 708 (1972); see also United States v. Cuthbertson, 651 F.2d 189 (3d Cir.), cert. denied, 454 U.S. 1056 (1981).
96. In re Williams, 766 F. Supp. 358, 370 (W.D. Pa. 1991), aff'd by equally divided court, 963 F.2d 567 (3d Cir. 1992) (en banc).
97. See United States v. Blanton, 534 F. Supp. 295 (S.D. Fla. 1982) (quashing subpoena because federal prosecutor failed to exhaust alternate sources and negotiate in good faith, violating Department of Justice guidelines); but see Scarce v. United States, 5 F.3d 397 (9th Cir. 1993), cert. denied, 114 S. Ct. 685 (1994) (rejecting application of the privilege where case closely resembled the facts in Branzburg, noting that there was no evidence in the record of prosecutorial "bad faith"); United States v. Long, 978 F.2d 850 (4th Cir. 1992) (holding that the government had followed proper procedures for securing authorization for the subpoenas and was unable to find an alternative source for the information); United States v. Lloyd, 71 F.3d 1256 (7th Cir. 1995), cert. denied, 116 S. Ct. 2511 (1996).
98. See Lenhart v. Thomas, 944 F. Supp. 525, 529Â–30 (S.D. Tex. 1996) ("The law is clear that compulsory disclosure of a reporter's confidential sources should be the last resort for obtaining information; all other means must first be exhausted.") (citations omitted).
99. See Branzburg, 408 U.S. at 707.
100. Vanessa Leggett v. United States, Petition for Writ of Certiorari at 5 (U.S. Dec. 31, 2001) (No. 01Â–983).
101. See Branzburg, 408 U.S. at 707Â–08.
102. See In re Grand Jury Subpoenas, No. 01Â–20745 (5th Cir. Aug. 17, 2001). Unfortunately, the Fifth Circuit felt that the record from the motion-to-quash hearing did not adequately present the issue of bad-faith subpoenaing on appeal. Id.
103. Leggett, Petition for Writ of Certiorari at 6Â–8 (U.S. Dec. 31, 2001) (No. 01Â–983).
104. Id. at 22.
105. Id. at 25.
106. See Erwin Chemerinsky, supra note 37, at 1161.
107. See Recent Cases, Evidence– Evidentiary Privilege–Second Circuit Refuses to Recognize Journalists' Privilege for Nonconfidential Information, 112 HARV. L. REV. 2019, 2022 (1999).
108. See American Society of Newspapers, Canon of Ethics, Article VI ("Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly."), available at www.ijnet.org/5188.html.
109. See Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (holding a reporter liable for breaking his promise of confidentiality to a source); Desnick v. Am. Broadcasting Cos., 44 F.3d 1345, 1355 (7th Cir. 1995) (rejecting the notion that there is First Amendment immunity for torts committed in newsgathering).
110. See Erwin Chemerinsky, supra note 37; Recent Cases, supra note 107, at 2023 ("One of the most important obligations of a responsible news media in a democracy is the aggressive investigation of entrenched institutions, including the government.").
111. See, e.g., Furman v. Georgia, 408 U.S. 238, 368 n. 158 (1972) (Marshall, J., concurring); Bunnell v. Sullivan, 947 F.2d 341, 352 (9th Cir. 1991) (en banc) (Kozinski, J., concurring); United States v. Greer, 538 F.2d 437, 441 (D.C.Cir.1976); 4 WILLIAM BLACKSTONE, COMMENTARIES, ch. 27, p. 358; In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) ("In a criminal case . . . we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. . . . [The reasonable doubt standard is] bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.").
112. DE TOCQUEVILLE, supra note 1, pt. I, ch. 9 (1835) ("In order to enjoy the inestimable benefits that the liberty of the press ensures, it is necessary to submit to the inevitable evils that it creates.").