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10 Cards in this Set
- Front
- Back
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Subpoena
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Subpoena: court order that requires the person to appear and testify (either at a deposition or trial)
-Notice is given to the person before the subpoena is served -compel testimony -reveal identity of confidential sources -produce photos, tape, etc. -Subpoenas are normally not objected to but some are on first amendment grounds -duces tecum (bring with you) |
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Search warrant
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NO advance notice to target of search warrant
Searches for evidence in criminal investigation Executed in newsrooms |
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Fourth Amendment and Search Warrants
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Provides protection against unreasonable searches and seizures (warrants)
-Supreme Court rejected first amendment exemption for press and claimed that the fourth amendment was a generally applicable law (i.e. it applies to everyone, including the press) |
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Confidentiality Agreements
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Can be enforced under state contract law
Forms: Could be written, oral or recorded |
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Branzburg vs. Hayes
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-first time Supreme Court addressed the issue of whether reporters have to testify if they are served w/ a subpoena
-3 cases were all consolidated on appeal, meaning they were all reviewed at the same time b/c they all had to do w/ the same issue Paul Branzburg was subpoenaed twice to testify before a grand jury that was investigating criminal drug activity -Branzburg promised not to use individuals’ names in return for access to info about individuals involved in criminal drug activity -2 different state grand juries were convened at different times -Branzburg refused to testify twice b/c he promised his sources confidentiality and was held in contempt of court (contempt means you can be fined, sent to jail or both) -Branzburg’s case was appealed all the way through the state court system and lost 2. Earl Caldwell -Reporter for NY Times in Oakland -Was given access to Black Panthers (militant civil rights group), which was allegedly involved in a plot to kill or harm Pres. Nixon -Caldwell was given opportunity to interview members of the group in return for promise of confidentiality not to reveal individual names -Federal prosecutors convened a federal grand jury to investigate conduct of these Black Panther members -Caldwell refused to reveal his sources when subpoenaed and lost in the trial court then won on appeal in the U.S. Ninth Circuit b/c of a reporter’s first amendment privilege not to breach confidentiality 3. Paul Pappas -He had also been given access to a Black Panthers headquarters in Mass. -Was in the HQ just before a raid -Subpoenaed to give names of everyone in the HQ when he was there and everyone he talked to -Refused to testify and to bring footage b/c he promised confidentiality -Held in contempt of court -Pappas went through Mass. state court system and lost on appeal -grand jury can be state or federal, but can only have to do w/ criminal activity -confidential, not open to the public -defendant may not know there is a grand jury proceeding involving them -person being investigated has no right to appear or know about the proceedings -people on jury are sworn to secrecy -grand jury draws from the public, just like a regular jury -grand jury’s function is to weed out cases where there’s not enough evidence presented by the prosecution to bring charges against an individual (only prosecution gets to present evidence) -grand jury can either throw case out if there’s not enough evidence or indict individual at which point that individual will be charged General Rule: Eyewitness to criminal event may be constitutionally compelled to… Testify when subpoenaed to appear before a lawfully-convened grand jury that is conducting a… Good faith criminal investigation into that event Application to “the Press” – Reporters No First Amendment exemption for “the press” Close vote on this issue – 5-4 vote of the Supreme Court Five justices supported a qualified First Amendment privilege Concurring justice: Powell, PLUS Dissenters: Stewart, Brennan, Marshall, Douglas -Majority opinion said that reporters are no different from any other citizen -Reporters’ testimony is important to functioning of criminal justice system, which is more important than protecting reporters under these circumstances |
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Three-part test
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Three-part test from Stewart’s dissent:
(1) CLEARLY RELEVANT TO PROCEEDINGS? If NO, no reason to compel testimony. If YES… (2) UNAVAILABLE FROM OTHER SOURCES? If NO, no reason to compel testimony. If YES… (3) “COMPELLING, OVERRIDING INTEREST?” Should be YES to compel testimony in case |
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First amendment privilege in federal courts
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First Amendment Privilege: Federal Courts
Federal criminal grand jury subpoenas? Most courts: No First Amendment privilege (Branzburg) Other federal proceedings: Varies by U.S. Circuit Civil AND criminal cases: 1st, 2nd, 3rd, 9th, 11th, and… 4th (confidential sources, or evidence of government bad faith), 5th (evidence of government intrusion in criminal cases) D.C. (with evidence of government intrusion in criminal cases) Civil only: 10th Circuit (has not yet ruled in criminal cases) Not ruled yet: 8th and 10th Does not recognize: 6th and 7th -Federal shield statute has not been passed, but is being considered again this session -Federal shield statute would provide federal statutory privilege for reporters to refuse to testify (under certain conditions, probably) |
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State shield laws
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-Some states have incorporated reporter’s privileges in their constitutions
-States have created shield laws that protect journalists from testifying -If a garden variety tort case is in federal district court b/c of diversity of citizenship, the court must act like a state court and follow the laws of the state in which the court is located -35 states and D.C. have state shield laws, which vary in the protection that they provide -N.C. shield statute favors journalists employed by big journalistic institutions |
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N.C. shield law
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A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.”
Qualified privilege: conditions that a journalist must meet to receive the privilege. There will be some exceptions in which journalists will not receive the privilege. Journalist. – Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.” “News medium. – Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.” Legal proceeding. – Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi-judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal How is the privilege overcome? Evidence that testimony/information sought… “(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;” “(2) Cannot be obtained from alternate sources; and “(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.” Source: Sec. 8-53.11(c) “Eyewitness observations” – NO privilege Privacy Protection Act of 1980 Coverage: To whom does PPA apply? “Any person [not suspected of a crime] reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication…” Covers state and federal search warrants When are search warrants lawful under PPA? “Work product” or “documentary materials” when… Target individual is suspected of a crime OR Receiving national defense or other classified materials “Documentary materials” also when… Government subpoena not honored; appeals exhausted OR, reason to believe materials will be destroyed Work product is the actual product that an individual has created him or herself Documentary material is material that the journalist has not created him or herself such an audio or videotape of an interview -Search warrants are not obtained lawfully when they are used to harass the press -Difference between search warrants and subpoenas is that journalists don’t know about a search warrant in advance -PPA is congressional protection that Congress passed in direct response to the Zurcher case |
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Zurcher vs. Stanford Daily
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KEY CASE: Zurcher v. Stanford Daily (1978)
Police had obtained valid search warrant Seeking unpublished riot photographs Ruling of Supreme Court: Fourth Amendment: Allows “reasonable” searches NO First Amendment “exemption” for “press” to avoid execution of lawfully-conducted search warrants General applicability of lawfully-obtained search warrants |
