Journalist's privilege: when deprivation is a benefit.

• Author: Zampa, Julie M.

Gonzales v. NBC, 155 F.3d 618 (2d Cir. 1998)

Debate over the issue of a journalist's privilege not to disclose information and source identities to the courts predates the United States Constitution.(1) Advocates for the privilege argue that the press's responsibility to provide a check on the government justifies affording the press certain privileges to fulfill that function.(2) Yet one can accept that the press is an important component of democracy and still reject an absolute privilege for journalists' information.(3) Indeed, when the Second Circuit in Gonzales v. NBC(4) deprived journalists of a privilege for nonconfidential information, it set a precedent that will increase press independence from the courts and will thus further, rather than frustrate, the press's performance of its constitutionally delegated function.

Though the Supreme Court has never ruled on the issue of journalist's privilege as it relates to nonconfidential information, related precedent invited the Second Circuit to move the law(5) in the direction of less protection for journalists. In Branzburg v. Hayes,(6) the Supreme Court authority on press privileges, the Court refused to extend any privilege to confidential information(7) in criminal cases(8) and suggested in dicta that press privileges are generally disfavored.(9) Several subsequent federal court decisions, however, evinced dissatisfaction with Branzburg' s implications;(10) the movement has been toward increased protection for journalistic privileges.(11) Gonzales signals a reversal of this trend.

I

Plaintiffs Albert and Mary Gonzales brought a civil rights action against a Louisiana deputy sheriff whom they accused of stopping minority citizens without probable cause and detaining and questioning them longer than other citizens. The Gonzaleses sought production of nonconfidential, unaired portions of a Dateline NBC program on law-enforcement abuses for use in their civil suit. The video outtakes in question contained footage of the deputy sheriff unlawfully searching a motorist. NBC contested the subpoena, arguing that the tapes were privileged and that disclosure would be unduly burdensome.(12) The district court held that journalists enjoyed a qualified privilege for nonconfidential as well as confidential information, but that the plaintiffs' need in this case was sufficiently compelling to override that privilege.(13)

On appeal, the Second Circuit affirmed the order directing production of the tapes but held, contrary to the lower court, that journalists have no privilege to avoid disclosing nonconfidential information.(14) In the Second Circuit after Gonzales, confidential communications remain subject to the following three-part test: For the privilege to be denied, the information sought must be highly material and relevant, necessary or critical to the claim, and unobtainable from other sources.(15) Nonconfidential communications, by contrast, are governed by the ordinary rules of discovery and receive no special privilege.(16) Neither the appellate court nor the litigants recognized that this outcome benefited NBC as well as its adversary. In retaining a qualified privilege for confidential but not for nonconfidential information in civil cases, the court created distinct standards for these two types of communications and thereby reduced the risk of arbitrary judicial treatment of the press.

II

A number of courts outside the Second Circuit continue to extend a qualified privilege to both confidential and nonconfidential information in civil cases.(17) The use of the same standard for both confidential and nonconfidential communications at worst conflates the two and at best obscures the true bases for decision, rendering the outcomes of the decisionmaking process unpredictable and ultimately imperiling reportersource relationships.

Most courts that extend a qualified privilege apply the same three-part test to both confidential and nonconfidential information that the Second Circuit now restricts to confidential information. Whether the information in question is confidential is not a formal consideration in the current three-part inquiry. Application of the standard to both types of communications invites courts to set the same threshold of protection for both. The three-part test is subjective: How "highly" material and how strictly "necessary" the information in question must be will vary according to the strength of the countervailing interest in protecting that information.(18) The interest should be greater when information is confidential and lower when it is not. When the standard does not specify this, courts have license to fill the void with their own subjective values, and they need not explain or justify their choices.(19) Courts that favor less protection for journalists' materials are free to conflate the two types of information--as the standard invites them to do--and afford confidential information as low a level of protection as they afford nonconfidential information. Alternatively, courts that believe journalists' communications should enjoy protection can impose a higher threshold, even for nonconfidential communications, before the privilege will be denied.(20) Overbroad judicial discretion is an inevitable result of the pre-Gonzales approach.(21)

The standard's lack of guidance has allowed judges to inconsistently include or ignore the nature of the information in privilege analyses. When the nature of the information is not a consistent and explicit factor in the inquiry, parties cannot determine the factors influencing judges' decisions. Where courts have explicitly considered whether the information is confidential, they have failed to specify how much weight this factor carries. The lower court in Gonzales, for example, mentioned in its holding that the information at issue was not...