A talk on the reporter’s privilege cannot be complete without mentioning Vanessa Leggett, an unpublished author who was jailed for 168 days for refusing to reveal her sources. Leggett who was writing on a murder case in Houston was jailed for refusing to respond to a subpoena. As a matter of fact, she spent the longest period in jail than any other American journalist concerning the issue of a subpoena. The main reason why Leggett had to serve the jail term was attributed to the absence of the reporter’s privilege in the Fifth Circuit whose legislations included Texas. Furthermore, Leggett’s misfortunes increased when the US Department of Justice failed to intervene citing that an unpublished author, according to their stipulations, could not be considered a journalist (RCFP, 2007).
Apart from Leggett’s issue, several other subpoenas have been issued to journalists from different media houses in America. A study by the RCFP dubbed Agents of discovery, revealed that in 1999 alone, more than 440 news organizations received more than 1,326 subpoenas. This notwithstanding, 46% of the respondent media organizations confessed to have received one or more subpoenas (RCFP, 2007).
Controversy of the Issue
A brief introduction on what a reporter’s privilege is can give an insight to a better comprehension of this topic. According to the Reporter’s Committee for Freedom of the Press (2007), the reporter’s privilege is defined as a reporter’s right “…not to be compelled to testify or disclose sources and information in court.” Although the privilege is widely recognized in most of the United States, there are variable differences in parameters within the different States. This means that a journalist in one State can get different treatment as compared to a counterpart with the same issue in another State. This difference in parameters has resulted into different states covering the issue of non-confidential information differently. While other States recognize the issue, others have failed to. In addition, freelancers have been recognized in some States while others don’t.
As evidenced by the case of Leggett, the Fifth Circuit does not recognize reporter’s reporters’ privilege. Texas being one of the States that fall under the jurisdiction of the Fifth Circuit therefore could compel a journalist to reveal sources of information that is found essential in a court case. But this is not the same case for Illinois. In this State, a journalist is granted by the First Amendment, a constitutional right to refuse to reveal his sources even under the circumstances of grand juries’ subpoenas (Gunnarsson 2006). In addition to this, reporters also have a privilege under the common law evidentiary that allows them to conceal the identities of their confidential sources. In a case by Judith Miller, a former New York Times reporter, the District of Columbia’s US District Court compelled her to reveal sources citing that the First Amendment and also the federal common law do not protect a journalist under a jury’s context. This decision, though, caused divisions in the appellate panel as to whether the decision existed in the common law. Eventually, Miller was jailed until she offered to reveal her sources in the 85th day in jail.
These varying parameters in the different States have acted as the root cause of the controversy. For example, Legget had to serve a 168 day jail term because of the absence of the reporter’s privilege in the Fifth Circuit. Another issue that leads to controversy is the narrow inclusion of a certain group of writers within the legal definition of a journalist. The definition excludes the unpublished writers, as in Leggett’s case. This, thus, calls for an effort to ensure that a clear definition of the reporter’s privilege is constructed in such a way that it develops a systematic approach in the States and also that it incorporates all forms of writers so as to ensure that the public gets the information that is not influenced by aspects of self censoring or any other form of bias that can come as a result of these intimidations.
Among the groups sidelined under this case of reporter’s privilege are the bloggers. Valdo Jacquith, a Virginia blogger was served with several subpoenas in early January 2009 being compelled to reveal the IP addresses and identities of the people who had viewed and made comments on one of his blogs’ article. This issue forced Paul Allan Levy of Public citizen, Thomas Jefferson Center’s Josh Wheeler and ACLU of Virginia’s Rebecca Glenberg to file a brief trying to protect Jacquith from providing the required identities (Bayard 2009). The main argument of the brief was the provision that all blogger’s should be protected under the reporter’s privilege as any other journalist. This was termed as the most appropriate step owing to the fact that technology was advancing and thus more people are relying on the electronic media for their news. They cited the Christian Science monitor as one of the news paper that was going completely online as evidence to the changing face of news.
This shows that a blogger, just as any other journalist serves the function of collecting, writing and distributing news to the public. Therefore, they are supposed to be considered by the same standards as any other journalists. This is so because the functions of a blogger are similar to a newspaper or radio and television journalist. Bayard (2009) therefore argues that more of such cases should be expected in the near future as the case is of great important. This will be so until a clear definition of a journalist is given.
The perception of the public concerning this issue of reporter’s privilege also provides another obstacle (RCFP, 2007). Most of the opposers of this privilege purport that journalists, like any other Americans, should not be placed above the law. They feel that the shield laws that journalists operate under make them undermine the federal court standards which dictate that every man is entitled to give evidence where necessary. This defines another problem experienced by journalists under this reporter’s privilege.
But is this portrayal adequate or some thing has to be done to change the public’s perception of the case? RCFP feels that the perception is wrong. Even courts themselves have understood the importance of allowing the journalists to refuse to testify basing on the importance of the refusal in relation to public interest. If the implications of the testimony do surpass the demand of the given evidence, the courts will be compelled to allow the journalist to hide the identity of his sources. The main idea behind these shield laws is to ensure that journalists are under a certain protection which will enable them to report to the public in a more neutral and objective position. Being the watchdogs of the society, their position has to remain neutral in the eyes of the public. Harmed credibility can lead the public to view them as working for the State, as protectors of criminals and also as people who are inclining on a side in case of a civil dispute.
Critiques have also argued that the implementation of these shield laws that protect a journalist from identifying his sources have worked as an impediment to the administration of justice. They purport that criminals have been left Scot free due to lack of evidence. However, this is not the case as portrayed by the CFIF (2005). According to them, some States have worked with this Law for more than a Century without experiencing instances of injustice. In fact, this has led to the administration of justice as in the case of John Morris in 1896 when he reported in the Baltimore Sun that several officials elected by the public and some police officers were among the people listed in the payrolls of illegal establishments of gambling. Although John was arrested and stayed in jail for 5 days, what he brought to limelight was important in the interest of the citizen and led to the administration of justice. In addition, this was the beginning of the reporter’s privilege. It was born here and spread to all nations including the United Nations.
Another present hardship that journalists undergo concerning this issue comes in terms of lawyers that represent them in court during such cases. Most of the journalists are not represented by lawyers who understand the ins and outs of the issue of reporter’s privilege. This makes them fail to salvage themselves from such cases and end up serving jail terms.
The Legal Part of Reporter’s Privilege
The case of Judith Miller can enable us understand the issue better. There are several factors that led to her acceptance to reveal her sources after staying in jail for 85 days. One of the greatest contributors is the lack of a defined Federal constitution privilege that applies to the reporters. This coupled up with a questionable Federal common law makes most of the cases concerning the reporter’s privilege be marred with uncertainty (Gunnarsson, 2006). For example, asked whether Miller could have been allowed to conceal her sources should she have been subpoenaed by a state court, attorney Donald Craven of Springfield could only afford a response of “may be” and “it depends.” This shows that the laws are not clearly defined so as to offer reliable protection to the journalists.
In addition, the definition of a reporter as offered by the statute (Illinois) can also give room to controversies as to whether a blogger falls under this category or not. According to the Illinois statute found at 735 ILCS 5/8-901 et seq, a reporter is defined as “…any person regularly engaged in the business of collecting, writing and editing of news for publication through a news medium on a full time or part time basis.” (Gunnarsson, 2006). A news medium on its part is defined as a newspaper or periodical in print format or electronic format that is issued regularly and which has a general circulation. The radio and television are also included in the definition of a medium.
In such a definition, several reporters stand a chance of being sidelined thus subjecting them to lack the privilege. For example, the case of Leggett could be justified under this definition because she was not connected to a certain medium, one thing that is essential during the process of filing a libel or slander (Gunnarsson, 2006). In this case, a person filing for a libel or slander must give the name of the journalist together with the media house to which he is connected. Apart from Leggett who was an unpublished writer, freelance writers could also find themselves under fire in such a definition.
Exemptions
Some cases also call for the journalist to reveal his sources. The most important issue that can force a journalist to reveal her sources is when the revealing of the sources serves to be of great interest to the public. In addition, their must be evidence that all other sources have been exhausted and therefore the only remaining source to help in the fair trial is the journalist. These cases do not apply to all the States. It is specifically applicable to some states among them Illinois (Mabra & Perry, 1993).
Despite these flaws, the journalists will remain covered by the three major laws until major amendments will be made. These are the First Amendment protection, State Constitutions, common laws and court rules, and finally the statutory protection. Under the First Amendment Protection, the journalist will only be compelled to reveal his sources after a thorough balance of interests. The courts are therefore obligated to consider whether the information is really relevant, whether there is a really compelling interest in the provision of the information and finally whether the information could not be retrieved from any other source apart from the media (Mabra & Perry, 1993).
Apart from the first Amendment protection, most of the other shield laws protect only the established journalists who work full time for the media. This comes in terms of their definition of the word “journalist.” This means that freelancers, book writers, Internet journalists and other sources of reporting will only rely on the single source of protection which is the First Amendment. However, this leads to interference on the free flow of information which is essential for a democratic society (RCFP, 2007).
Conclusion
The controversies surrounding the issue of reporter’s privilege will remain a milestone in free flow of information as long as the issue is not clearly defined with a uniform definition enacted by the relevant body. This marks the uncertain future of the reporter’s privilege. With the advent of the Web, the definition of the journalist will automatically be viewed as outdated and will need to be reviewed to include the rising number of bloggers who are providing sources of interesting journalism on the internet (Bayard, 2009). In addition, most of the seasoned print media houses are changing their tactics and embracing technology by using the electronic format to disseminate their information. This will call for a proper revisiting of the laws that protect the journalists so that the free flow of information is not tempered with. Without these amendments, the journalist will remain in a state of limbo as refusing to reveal the source leads him to jail and at the same time revealing the source could lead to jail if the source sued him and his media house under promissory estoppels, which is the same as breaching contract.
References
Bayard, Sam. (2009). “Virginia Blogger Invokes Reporter’s Privilege to Challenge Subpoena Seeking Anonymous Commenters.” Citizen Media Law Project. Web.
CFIF.org. (2005) “Considering the Reporter’s Privilege… Secretly.” Web.
Glenn, Mabra, and Perry, Barbara,. (1993). Civil Liberties Under the Constitution. University of South Carolina Press: South Carolina.
Gunnarsson, Helen. (2006). “Do Journalist Shield Laws Protect Bloggers? An Illinois Bar Journal Article.” Politech. Web.
The Reporter’s Committee for Freedom of Press. (2007). “The Reporter’s Privilege Compendium.” Web.