My column from October (which is not nearly as exhaustive): http://news.com.com/2010-1025_3-5907336.html -------- Original Message -------- Subject: Illinois Bar Journal article Date: Fri, 10 Mar 2006 16:21:37 -0800 From: Helen W. Gunnarsson <gunnarssonhg@private> To: <declan@private> [Note snipped. --DBM] ---------------------------------------------------------------------------- ---- By Helen W. Gunnarsson Would Illinois' reporter's privilege have shielded Judy Miller? And does it protect bloggers? It all depends, a media lawyer says. ---------------------------------------------------------------------------- ---- Former New York Times reporter Judith Miller was herself as much of a story as some of her sources. Miller refused to testify before a grand jury empaneled to investigate whether and who disclosed that Valerie Plame, the wife of ambassador Joseph Wilson, was a CIA covert agent. Such a disclosure, if made by anyone having authorized access to classified information, is a crime under federal law. 50 USC section 421. Miller refused to comply with the subpoenas served upon her and moved to quash them, arguing, among other things, that the First Amendment grants journalists a constitutional right to conceal their confidential sources even against the subpoenas of grand juries, and that reporters have a common law evidentiary privilege permitting them to conceal confidential sources' identities. The United States District Court for the District of Columbia held that neither the First Amendment nor the federal common law provides protection for journalists' confidential sources in the context of a grand jury investigation. The court of appeals for the District of Columbia upheld the district court's order, although the appellate panel was divided on whether any such privilege exists at common law. Notwithstanding the courts' orders, Miller continued to refuse to testify. The district court then ordered her jailed under 18 USC section 1826, the Recalcitrant Witness Statute. After 85 days in jail, Miller agreed to testify as ordered and was released. Though there is no federal constitutional privilege for reporters, and though the existence of any federal common law privilege is questionable, most states, including Illinois, have enacted their own statutory versions of some sort of reporter's privilege. If subpoenaed in state court, would Illinois' privilege have enabled Judith Miller - or some other reporter, say, one employed by an Illinois newspaper - to successfully resist testifying? What about an independent blogger? The answers to these questions, according to Springfield attorney Donald Craven, general counsel to the Illinois Press Association, are a clear "it depends" and "maybe." The Illinois shield statute Illinois' statute on the reporter's privilege is found at 735 ILCS 5/8-901 et seq. The statute provides that no court may compel any person to disclose the source of any information obtained by a reporter except as provided therein. Craven notes that the Illinois Appellate Court has held that the privilege exists even if a reporter has made no promise of confidentiality. Scott v Silverstein, 89 Ill App 3d 1039, 412 NE2d 692 (1st D 1980). The statute defines "reporter" as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis." "News medium," in turn, means "any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation" as well as broadcast media such as radio and television stations. 735 ILCS 5/8-902. Once a person has asserted the privilege conferred by 735 ILCS 5/8-901, the entity seeking that information may file a written request with the court for an order divesting the person of the privilege and ordering him or her to disclose the source of the information. 735 ILCS 5/8-903. The request must allege the name of the reporter and news medium with which the reporter was connected at the time he or she obtained the information; what specific information is sought and how it is relevant to the proceedings; and either a specific public interest which would be adversely affected if the factual information sought were not disclosed or, in libel or slander cases, the need for disclosure of the information sought to the proof of the plaintiff's case. (In libel or slander cases, the plaintiff must also provide the court with a prima facie showing of falsity of the alleged defamation and actual harm or injury due to the alleged defamation.) 735 ILCS 5/8-904. To grant an application for divestiture and disclosure under the statute, the court must find that the information sought does not concern matters that the laws of either Illinois (though not other states) or the federal government require to be kept secret. Additionally, the court must find that all other available sources of information have been exhausted and that either disclosure is essential to the protection of the public interest or, in libel or slander cases, that the plaintiff's need for disclosure outweighs the public interest in protecting the confidentiality of informational sources that a reporter uses as part of gathering news. The statute permits a court to make the disclosure subject to any protective conditions that the court may deem necessary or appropriate. 735 ILCS 5/8-907. Exhaustion of other sources is key Craven says the public interest and exhausting all other available sources of information are the keys to whether a reporter will succeed in refusing to testify if subpoenaed in an Illinois state court. In In re Arya, 226 Ill App 3d 848, 589 NE2d 832 (4th D 1992), in which Craven himself represented the defendant, a Peoria television reporter, the court found that the seeker's failure to show that all other available sources of information had been exhausted trumped a public interest that, in Craven's words, "screamed for disclosure." Arya, the reporter, possessed videotapes and notes pertaining to a triple murder and armed robbery, which the state believed contained names and interviews of at least three persons with significant information pertinent to its investigation of those crimes. The appellate court found that the state had contacted all available sources and that the police had conducted a thorough and comprehensive investigation. Neverthe-less, the court vacated and remanded the trial court's order divesting Arya of his reporter's privilege because it did not feel that the record sufficiently supported a finding of exhaustion. The court commented that the trial court should narrowly tailor any order of divestiture to require a reporter to produce only the information for which the petitioner met all the statutory prerequisites, and, if necessary, to conduct an in camera inspection of the material in question before directing it to be produced to ensure that its production would not violate the protections the legislature intended to provide to reporters. The strong public interest in solving the crimes of violence at issue, then, did not clearly outweigh the public interest in enabling reporters to protect their sources. With the proliferation of blogs, the question "Who is a reporter?" has gained prominence. Is a blogger a "reporter" within the meaning of Illinois' statute on reporter's privilege? The Illinois appellate courts haven't yet addressed that issue. Craven thinks the answer may depend on the nature of the blog and whether the blogger is performing the functions of a reporter. Journalist Declan McCullagh, chief political correspondent for CNET Network's News.com and editor of the Politech website and mailing list, considered this question in a column published October 24, 2005, discussing whether a federal journalist's shield law should be approved. While some have expressed concerns about a lack of accountability on the part of bloggers, McCullagh himself expresses a concern for independent online reporters, who McCullagh feels "are producing some of the most interesting journalism on the Internet today," becoming second-class journalistic citizens. Craven says it's not unusual for small organizations and individual reporters with tight budgets to roll over when presented with requests for the disclosure of source information. Should reporters always vigorously resist such requests, as Miller did? Craven says he can't comment on Miller's actions, but he does remark that "[u]sing the reporter's shield to protect oneself or flaws in one's story makes it harder for all of us [who are championing press integrity]." The U.S. Court of Appeals' decision rejecting Miller's appeal is cited as In Re Grand Jury Subpoena, Judith Miller, No. 04-3138, consolidated with Nos. 04-3139 and 04-3140, decided Feb. 15, 2005, and reissued Feb. 3, 2006. The opinion is available on line at http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf. University of Chicago law professor Geoffrey Stone has summarized the Miller controversy and provided some thoughts on civil disobedience in an October 27, 2005, University of Chicago Law School Faculty Blog entitled Judy Miller: 85 Days for What? available at http://uchicagolaw.typepad.com/faculty/2005/10/judy_miller_85_.html. Craven authored Chapter 14: Reporter's Privilege in the Illinois Press Association's handbook, which is available on line at http://www.il-press.com/main.asp?SectionID=42&S ubSectionID=661&TM=51798.41. McCullagh's October 24, 2005, column is available at http://news.com.com/2010-1025_3-5907336.html. ---------------------------------------------------------------------------- ---- Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at gunnarssonhg@[nospam]comcast.net _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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