There has been a series of cases in recent months involving attempts by the government to expose journalists’ confidential sources of information. These cases tend to follow a familiar pattern: the government seeks the identity of a reporter’s source of information and the reporter (or media company) asserts a journalist’s First Amendment protection from being compelled to testify about confidential information or sources (commonly known as the “reporter’s privilege”).
In fact, a succession of reporter’s privilege cases have appeared across the country over the past two months.
In San Diego California, County lawyers sought to compel freelance journalist Kelley Davis’s notes, research, and sources along with a deposition after she published a series of articles detailing jail deaths and the high inmate suicide rate in San Diego jails. Davis successfully argued that the reporter’s privilege applied and secured a ruling protecting her from disclosing any confidential information to the County.
San Diego County also recently lost another attempt to compel a journalist to testify in the case of Israel Morales, who was charged with three misdemeanor counts of drunk driving. A journalist, Paul Anderegg, witnessed Morales pushing his car on the freeway, called 911, and then witnessed an accident as another car struck Morales’ vehicle. Prosecutors argued that Anderegg could be called as a witness to testify in the County’s case against Morales because he was not acting as a journalist when he witnessed the accident. However, the judge disagreed and ruled that because Anderegg traveled to the scene to record the events for a news story, he was protected by the reporter’s privilege and prosecutors could not subpoena him to testify.
In Des Plains Illinois, the city, police chief, and a police sergeant recently sued the Journal & Topics Media Group seeking the identity of the source of a photograph published by the Journal depicting police officers viewing pornography in the police station. The Journal successfully asserted the reporter’s privilege and was not ordered to disclose the name of its source.
Finally, in New York, the Associated Press recently objected to an attempt by Honduran police officers to obtain the AP’s phone records in order to identify the source of a story detailing how top Honduran police officials intervened to safely deliver 1,700 pounds of cocaine to a cartel kingpin. The AP has refused to provide the records, claiming that they are protected under the analogous reporter’s privilege embodied in the Honduran constitution.
In California there is a robust reporter’s privilege that shields journalists from having to disclose confidential (or non-confidential) sources and unpublished information in civil proceedings. California’s reporter’s privilege is set forth in Article I, Section 2(b) of the California Constitution (known as the “Shield Law”) which states that reporters are protected from “disclos[ing] the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” The same is established by statute in California Evidence Code Section 1070. Accordingly, California courts have interpreted the Shield Law as providing absolute immunity from disclosing sources or unpublished information in civil proceedings.