Freeing newsgathering from the reporter's privilege.

• Author: Randall, Jaynie

McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003).

A number of recent high-profile cases have forced courts to reexamine whether reporters must respond to subpoenas seeking disclosure of confidential sources or whether they are protected from doing so by the doctrine of reporter's privilege. (1) While these confidential-source cases have garnered the most public attention, the vast majority of subpoenas issued to reporters seek to compel disclosure of nonconfidential information. (2) In a recent case, McKevitt v. Pallasch, Judge Posner suggests that the reporter's privilege, if it exists at all, should not extend to nonconfidential information. (3) In this Comment, I argue that Posner overlooks the unique ways in which a privilege for nonconfidential information protects the newsgathering process. Federal courts should use their common law power under Federal Rule of Evidence 501 to articulate a flexible newsgathering privilege for reporters analogous to the work product immunity that exists for attorneys. (4)

In McKevitt, a defendant in a terrorism case in Ireland obtained a U.S. district court order compelling a group of biographers to produce videotapes of an interview with a key prosecution witness. The witness did not object to the disclosure of the tapes, and his identity had not been kept confidential. Nevertheless, the biographers appealed the order on the basis of a claimed federal common law reporter's privilege rooted in the First Amendment. In refusing to issue a stay, the Seventh Circuit held that subpoenas of reporters deserve no special treatment and should be subject to the reasonableness test applied to all subpoenas. (5)

McKevitt evinces the commonly held view that a privilege for nonconfidential information is merely an expansion of the privilege for confidential sources sanctioned by Branzburg v. Hayes. (6) Within the First Amendment framework of Branzburg, the absence of confidentiality weakens the claim to privilege: "When the information in the reporter's possession does not come from a confidential source, it is difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure." (7)

However, as Judge Posner acknowledges, the First Amendment is not the only possible source of protection for newsgathering activities. (8) The Federal Rules of Evidence invite courts to consider recognizing new evidentiary privileges according to "the principles of the common law ... in the light of reason and experience." (9) In recognizing privileges, courts look, among other things, to state common law and state statutes. (10) With more than twenty states offering protection for nonconfidential information--in the form of shield laws or case law--a prima facie case exists for recognizing a common law privilege for newsgathering. (11)

In McKevitt, Posner discards those arguments advanced in support of a nonconfidential-information privilege as "skating on thin ice," because they were rejected in Branzburg in the context of a confidential-source privilege. (12) However, rejecting certain interests as not protected by the First Amendment does not foreclose their adoption for Rule 501 analysis. (13)

II

The McKevitt opinion rests on a failure, common among courts, to adequately distinguish between the newsgathering process generally and the journalist's relationship to a confidential source. These very different aspects of the journalistic enterprise cannot be conceptualized in the same way, nor should they be protected by the same privilege. Judge Posner is correct to criticize proponents of a newsgathering privilege for attempting to stretch Branzburg too far. Courts that have recognized such a privilege have conflated newsgathering and source identity, rather than properly recognizing that the rationale of Branzburg reaches only protections for confidential sources. By justifying the nonconfidential-information privilege in general terms that apply equally to the confidential-source privilege, even its defenders have left it susceptible to outright rejection by unsympathetic judges and relegated newsgathering to a secondary status. (14)

In order to recognize a newsgathering privilege, courts must articulate justifications based on the distinct and important newsgathering interests at stake. A newsgathering privilege should stand on independent footing from the confidential-source privilege just as the work product doctrine has a distinct basis from the attorney-client privilege. Constitutional interests in effective representation necessitate these two complementary protections for attorneys. Similarly, newsgathering and confidential-source protections bolster different aspects of a free press.

The attorney-client privilege is one of the oldest common law privileges, rooted in the need for effective representation. The privilege is based on a need for "full and frank communication between attorneys and their clients." (15) Work product immunity was first recognized by the Supreme Court in Hickman v. Taylor (16) and was later codified in the Federal Rules of Civil Procedure. (17) The rationale that Hickman articulated is that preparation for vigorous advocacy in an adversarial system requires "privacy, free from unnecessary intrusion by opposing parties and their counsel." (18) These complementary and somewhat overlapping protections guard different types of interests within the attorney-client relationship and thus have distinct shapes.

The analogy between attorney-client privilege and work product doctrine illustrates the discrete incentives protected by the confidential-source privilege and the newsgathering privilege. The attorney-client privilege seeks to encourage disclosure of information within the protected relationship, (19) as does confidential-source protection. (20) Without the assurance...