Reporter's Privilege Examples

• Rahim Aziz Sajwani
• Fahad Faruqui

In United States of America the reporter’s privilege is provided to protect reporter from being compelled to testify the information provided by the source or the source itself. The reporter’s privilege is guaranteed by U.S constitution and statutory law. Reporter’s privilege has nothing to do with confidential communication but it grants the disclosure of information through news media. Reporter’s privilege is not for secrecy purposes. Secrecy is the part of agreement between the reporter and the source.

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In context of journalism, source is any person, record, article or publication that provides relevant information about subject. In the case where there is legal system against a journalist one of the problems is to what degree law will provide protection to the source and material provided by source of journalist from unconscious discloser. Even though there is reporter’s privilege to protect a journalist from disclosure of sources but practical application of reporter’s privilege depends on the context, situation and judgments by media organizations regarding how far they will go to authorize their rights.

About forty nine states and the District of Columbia provide reporter’s privilege which tends to protect them from government trying to reveal the secret information and sources. Some of the states also have shield laws that guarantee protection to journalists and right to access information but there are no federal shield laws. However, the journalists are trying to pass the federal shield law by congress that will protect them from accessing information and indirectly protect their sources too. In post 9/11 scenario the government of United States is more concerned with leak control and Obama administration trying to update the Justice Department guidelines that deals with media to prevent leakage of any information.

Joshua Selassie (Josh Wolf), a freelance video journalist was sentenced to prison in 2006 when he was subpoena for the videotape that he captured during the protest on July 8, 2005 in San Francisco. During that protest some of the protestors wore masks and violated laws by causing destruction to some builds and getting in fist fight with police officials. A police car was also damaged that brought federal intervention in the case. That over ruled state shield laws and there are no federal shield laws available for journalists. Even though Wolf had not captured the scene of damaging the police car but he was charged because he shot the video of protest and tends to have evidence about protestors who were intended to cause destruction. Wolf edited the videotapes and then posted it on the news website Bay Area Indymedia but he was subpoenaed by the court to testify to provide all the videotapes he had captured during the protest. He did not comply with the subpoena and refused to submit the videotapes to court. He was jailed in August 2006 and was bailed in September 2006 but still did not comply. In April 2007 the prosecution dropped their charges against Wolf after he posted the unaired video online.

In Wolf’s case the prosecutors argued that Wolf was not affiliated with any news organization. For them he was just a man with the video camera who had captured the protest.[1] So, it is nothing wrong to ask him to testify the video tapes to the grand jury. However, for Wolf it was inappropriate to testify his videotapes as a journalist because he cannot reveal his sources and he could not break the trust with the people who gave interview in the video. Wolf said it was his property and it was only his choice of what he wants to show to the public and what not because he does not want to give away everything just like that. His case raised question against first amendment and free speech. Wolf stood firm till the end even though he knew that there was nothing confidential in those videotapes but he fight for freedom of press and right to access information.

It was also irrelevant for the court to hold charge against Josh Wolf because he had already posted the edited footage on the website and he had ensured that the footage that was left out had nothing relevant information and evidence about the destruction of police car. The only justification for testifying those tapes was that law enforcement officials wanted to identify people who were involved in the protest. That is why when Wolf posted the unaired footage on the blog he was released and charges were dropped down. The prosecution found nothing in those video tapes.

President Obama had promised freedom of press during his election campaign and was poised as champion of freedom of the press. However, his administration is the most aggressive administration in history of United States of America in terms of targeting whistleblowers. His Justice Department has brought eight cases in this way; it is much more in number because it has more than all past administrations joined. It is getting more difficult to have free speech and press when the administration is that aggressive against investigative journalism because the government brings 1917 Espionage act under the way of reporter’s privilege and subpoena suspected journalists to testify their sources.

In 2008 James Risen, the investigative journalist of the New York Times was subpoenaed to identify the source of the information which he had published in his book State of War about Central Intelligence Agency (C.I.A) operation in Iran.

Before Risen published his book he and his fellow journalist Eric Lichtblau got this information from a source that National Security Agency (NSA) was keeping an eye on American citizens. They were listening telephone calls locally and internationally, gathering lots of information and lots of data mining through telephone conversations and content in email without having any permission from court to do it. They were doing it on the bases of Foreign Intelligence Surveillance Act (FISA) court which was organized to get secret warrants to spy on suspected terrorists and whistleblowers. The government had decided not to tell this to anyone except few people from Congress like chairman of intelligence agencies and was keeping it secret from everyone else. It took them fourteen months to investigate all this information from an authentic source and then gave it to Bell Keller the executive editor for New York Times at that time. Keller decided to hold this article and not to publish it in the newspaper before elections.

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After the elections Risen and Eric worked on the article again, re-edited but editors refused to publish it because it was subject concerned with national security. Bell Keller was called up to the President and he was said that publication of that story will lead them to another incident like 9/11 and if it will happen than the New York Times will be held responsible for it. They could have the blood on their hands. [2] After debating with their editors Eric and Risen got approval to publish their story in the newspaper and they were awarded Pulitzer Prize for National Reporting in 2006 for their efforts on drawing a line between war on terrorism and civil liberty.

However, James Risen was prosecuted for another story that he had published in his book State of War: The Secret History of the CIA and the Bush Administration. The story was about CIA involvement in the nuclear program in Iran. CIA said to give flawed blueprints to the Iranis so they cannot make nuclear bombs but those blue prints had some potential information about bombs. He was subpoenaed for specifically writing this in his book and court asked Risen to testify his sources.

The government had decided not to attack New York Times for the story Risen had covered on NSA because it would have made a mess as New York Times is a reliable news organization and have ample followers and readers. However, it was easy for government to prosecute Risen for his book because than no one could save him.

When Government asked Risen to testify his source in court for the information he had published in his book. He denied giving away any information about his source because he believes that aggressive investigative journalism cannot possess without secret sources. There can’t be democracy without aggressive investigative journalism because it gives the genuine oversight of the legislation. However, the government is more afraid of investigative journalism because it puts light on what is going on inside the government and this is not possible without keeping up the privacy of sources. [3]

[1] Howard

[2] Democracy Now 14^th October, 2014

[3] James Risen Democracy Now 14^th October, 2014