Amicus Curiae Brief — Leggett v. United States

oa (as

IN THE

SUPREME COURT OF THE UNITED STAT

VANESSA LEGGETT,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMICI CURIAE

THE REPORTERS COMMITTEE FOR

FREEDOM OF Tit£ PRESS, AMERICAN SOCIETY

OF JOURNALISTS AND AUTHORS,

NATIONAL WRITERS UNION and THE

ASSOCIATION OF ALTERNATIVE NEWSWEEKLIES,

IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

CHARLES L. BABCOCK

ROBERT P, LATHAM

JouHN K. EDWARDS

JACKSON WALKER LLP

1100 Louisiana Street

Suite 4200

Houston, Texas 77002

(713) 752-4200

Counsel for Amici Curiae.

(additional counsel for Amici listed on inside cover)

Washington, D.C. © THIEL PRESS © (202) 328-3286

a2

Lucy A. DALGLISH

Grecc R, LESLIE

DANIEL R, BISCHOF

1815 N. Fort Myer Drive

Suite 900

Arlington, Virginia 22209

Attorneys for

The Reporters Committee for Freedom of the Press

SALLIE RANDOLPH

RANDOLPH LAW OFFICES LLP

1109 Delaware Avenue

Buffalo, New York 14209

Attorneys for

The American Society of Journalists and Authors

JONATHAN TASINI

National Writers Union (UAW 1981)

113 University Place

6th Floor

New York, New York 10003

President of

National Wnters Union

RICHARD A. KARPEL

Association of Alternative Newsweeklies

1020 - 16th Street, N.W.

4th Floor

Washington, D.C. 20036-5702

Executive Director

Association of Alternative Newsweeklies

(1)

Page

TABLE OF CONTENTS

Interest of Amici Curiae.........0 00 cece eee. l

Summary of Argument... . 6.6.66 c cece ce ccccee, 2

Argument:

I. The U.S. Constitution Requires Protection

Against The Compelled Disclosure Of Cun-

fidential Newsgathering Sources And Mater-

ials In Response To A Grant Jury Subpoena...... 3

II. The Fifth Circuit Unconstitutionally Abro-

gated The Qualified Privilege In Criminal

And Grand Jury Proceedings.................. 9

III. Strong Public Policy Rationales Support

Recognition Of A Qualified Journalist

Privilege With Respect To Confidential

Sources And Information ................... 13

cv cinenaen na POE ES CO OEP OO ee 16

TABLE OF AUTHORITIES

Federal Cases:

Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir.

tn REE EEO ET OE TOT Or Op ane 7

Branzburg v. Hayes, 408 U.S. 665 (1972)....... passim

Bruno & Stillman, Inc. v. Globe Newspaper Corp.,

633 F.2d 583 (1st Cir. 1980) ................ 8,9

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir.

WOE NG OO weds eens ak bois du acawd 8

Clyburn v. New World Communications, Inc.,

wun ©.am oP GAG, Cir. 1900) i. ee cccccwccens 9

(it)

Federal Cases, continued: Page

Cohen v. Cowles Media Co., 501 U.S. 663

2) 5 | EER rg r ni Snare rir ras 14

Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1995),

cert. dented, 427 U.S. 912 (1976).........0 ees 5, 8

In re Grand Jury, 95-1, 59 F.Supp.2d 1 (D.D.C.

Lo errr rrr ree eT errs erry errr 11

LaRouche v. National Broadcasting Co., 780

F.2d 1134 (4th Cir. 1986), cert. dented,

470 UB, GIG CIGD. occ ceccectstevescseess 8,9

Miller v. Transamerican Press, Inc., 621 F.2d

721 (5th Cir.), modified on rehearing,

628 F.2d 932 (5th Cir. 1980)......... 6, 7, 9, 10, 16

Pell v. Procunier, 417 U.S. 817 (1974) ........ 220 eee 8

Reporters Committee for Freedom of the Press

v. American Telephone & Telegraph Co.,

593 F.2d 1030 (D.C. Cir. 1978), cert.

demed, 440 U.B, 949 (1979)... ccscccccsevecvees 5

In re Selcraig, 705 F.2d 789 (5th Cir. 1983)...... 9,10

In re Shain, 978 F.2d 850 (4th Cir. 1992)............ 5

Shoen v. Shoen, 5 F.3d at 1292 (9th Cir.

WED 6 iscsi eee 6,7,9

Silkwood v. Kerr-McGee Corp., 563 F.2d 433

(100s Cat, BIT) 0c cas ccaneeneaeusaes teeers 8,9

Storer Communications, Inc. v. Giovan, 810

F260 SOO Cte ie. TIGT), ooo. 0c tev cawcess to08s 5

United States v. Burke, 700 F.2d 70 (2nd

Cir.), cert. denied, 464 U.S. 816

ti errr rr er rer rer rt ere 5, 6, 8, 9, 16

(ttt)

Federal Cases, continued: Page

United States v. Caporale, 806 F.2d 1487 (11th

Cir. 1986), cert. denied, 483 U.S. 2021

United States v. Cuthbertson, 630 F.2d 139

(3rd Cir. 1980), cert. denied, 449 U.S.

ie cred re bas wikia eds eos. 50 5, 6, 8, 9

United States v. LaRouche Campaign, 841 F.2d

a ree 5, 7,8,9

United States v. Smith, 135 F.3d 963 (5th Cir.

DE Seti eR Gaewh snake Gh 064 00.0 8s 6 5, 10, 14

von Bulow v. von Bulow, 811 F.2d 136 (2nd Cir.),

cert. denied, 481 U.S. 1015 (1987)............... 8

In re Williams, 766 F.Supp. 358 (W.D. Pa. 1991),

aff'd by equally divided court, 963 F.2d 567

Se he ene na 10, 11

Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)....... 8

Federal Statutes:

ee, OO, wou ber heen cecetieediebs 15

i ee erie kG eek abba chew ehheeei wees 11

No. 01-983

. )HE

SUPREME COURT OF THE UNITED STATES

VANESSA LEGGETT,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

INTEREST OF AMICI CURIAE!

The Reporters Committee for Freedom of the Press

- (“Reporters Committee”’) is a voluntary, unincorporated

association of reporters and editors that works to defend

First Amendment rights and freedom of information

interests. Since its founding in 1970, the Reporters Com-

mittee has provided representation, information, legal

| This brief is filed with the written consent of Petitioner and

Respondent. No counsel for a party authored this brief in whole

or in part, nor did any person or entity, other than the amici rep-

resented herein, its members, or counsel, make a monetary conti-

bution to the preparation or submission of this brief.

]

2

guidance, and research in press freedom cases, including

cases involving the qualified journalist’s privilege against

compelled disclosure of unpublished material, and par-

ticularly material related to confidential sources.

Founded in 1948, the American Society of Journal-

ists and Authors (“‘ASJA’’) is the oldest freelance writers’

association in the United States. The Society’s over 1000

members are independent, nonfiction writers of books

and journalism who have met ASJA’s exacting standards

of professional achievement.

National Writers Union (““NWU’’) is the only labor

union to represent freelance writers in US markets. The

union currently has more than 7000 members.

The Association of Alternative Newsweeklies (““AAN”’)

is a not-for-profit trade association for 121 alternative

newspapers in North America. Member publications have

a total weekly circulation of more than 7 million and a

reach of 20 million readers.

The Reporters Committee, ASJA, NWU, and AAN

(collectively, ‘‘Amici’’) adopt the arguments contained in

Vanessa Leggett’s Petition for Writ of Certiorari to this

Court. Amici write separately to emphasize the con-

stitutional considerations and public policy rationales

supporting recognition of a First Amendment qualified

privilege afforded members of the press against com-

pelled disclosure of confidential sources and material

in both civil and criminal proceedings.

SUMMARY OF ARGUMENT

This brief is directed to the protections afforded

journalists and members of the press under the First

Amendment to the U.S. Constitution to resist compelled

production of confidential source information and mater-

3

ial in response to a federal grand jury subpoena. This

Court’s decision in Branzburg v. Hayes, 408 U.S. 665

(1972) provided the foundation for nearly three decades

of lower court decisions recognizing this protection,

either in the form of an explicit qualified privilege or

otherwise, in both civil and criminal proceedings. How-

ever, there is now conflict among the federal circuit

courts over the existence, nature, and scope of constitu-

tional protection against compelled disclosure of confi-

dential sources and information.

It is the public’s “right to know” that is at the center

of this important debate over First Amendment protec-

tions. Both constitutional and strong public policy

rationales support such protections, which exist to pro-

mote the free flow of information to the public and not

the personal interest of individual journalists or the press

in general.

ARGUMENT

I,

THE U.S. CONSTITUTION REQUIRES PROTECTION

AGAINST THE COMPELLED DISCLOSURE OF CONFI-

DENTIAL NEWSGATHERING SOURCES AND MATER-

IALS IN RESPONSE TO A GRAND JURY SUBPOENA

This case concerns an important matter of public inter-

est, namely the ability of members of the press to protect

confidential sources.- By clarifying the existence and par-

ameters of this protection, this Court will ensure that

journalists nationwide receive the uniform support neces-

Sary to Carry out their constitutionally protected news-

gathering and reporting activities. Absent this protection,

the press will be subject to varying levels of treatment

depending on the jurisdiction in which they work — in

some jurisdictions, including the Fifth Circuit, journalists

4

will be reduced to an investigative arm of prosecutors,

police, criminal defendants, and civil litigants, resulting in

a severe chilling of the flow of information to the public.

This Court recognized the constitutional dimension of

this public interest in Branzburg v. Hayes, 408 U.S. 665,

681 (1972), stating that the newsgathering and editorial

processes are entitled to protection under the First

Amendment: “Without some protection for seeking out

the news, freedom of the press could be eviscerated.”’

Branzburg, 408 U.S. at 681. While this Court rejected an

absolute privilege in holding that the reporters in Branz-

burg could be compelled to reveal sources to a grand

jury on the facts presented, this Court also stated that

“news gathering is not without its First Amendment

protections .... We do not expect courts will forget

that grand juries must operate within the limits of the

First Amendment as well as the Fifth.” Branzburg,

408 U.S. at 707-08. Justice Powell, in a pivotal con-

curring opinion, made clear that the majority was not

rejecting a qualified privilege:

The Court does not hold that newsmen, subpoe-

naed to testify before a grand jury, are without

constitutional rights with respect to the gathering

of news or in safeguarding their sources. [.. .]

Indeed, if the newsman is called upon to give

information bearing only a remote and tenuous

relationship to the subject of the investigation, or

if he has some other reason to believe that his tes-

timony implicates confidential source relationships

without a legitimate need of law enforcement, he

will have access to the Court on a motion to quash

and an appropriate protective order may be issued.

The asserted claim to privilege should be judged on

its facts by the striking of a proper balance between

freedom of the press and the obligation of all citi-

5 ;

zens to give relevant testimony with respect to crim-

inal conduct.”

Whether the First Amendment’s protections of news-

gathering activity rise to the level of a qualified privilege,

and whether such a privilege is properly attributable to

Branzburg, has been the subject of much debate. Lower _

federal courts have struggled to reconcile Branzburg’s

rejection of an absolute privilege with its enunciation of

constitutional protections afforded the press. There is

now recognition in a majority of federal circuits that

journalists possess a First Amendment qualified privilege

against compelled disclosure of their newsgathering

activities under Branzburg,® while a minority of circuits

have either declined to recognize the privilege or have so

weakened it that it has become virtually nonexistent.*

Whether characterized as a privilege or as some other

form of constitutional protection, a three-part test has

emerged to assess the legitimacy of a government sub-

27d, at 709-10 (Powell, J., concurring) (emphasis added).

3 see, ¢.g., United States v. LaRouche Campaign, 841 F.2d

1176, 1182 (1st Cir. 1988) (qualified privilege protects disclosure

of unpublished information in criminal cases); United States v.

Burke, 700 F.2d 70, 76-77 (2d Cir.) (same), cert. denied, 464

U.S. 816 (1983); United States v. Cuthbertson, 630 F.2d 139,

147 ($d Cir. 1980) (qualified privilege protects confidential sources

and unpublished information in criminal cases), cert. denied, 449

U.S. 1126 (1981); Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir.

1975) (qualified privilege protects confidential sources in crim-

inal cases), cert, denied, 427 U.S. 912 (1976); United States v.

Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (qualified privi-

lege protects unpublished information in criminal cases), cert.

denied, 483 U.S, 1021 (1987).

4 See, e.g., Reporters Committee for Freedom of the Press

v, American Tel. & Tel. Co., 593 F.2d 1030, 1049-50 (D.C. Cir.

1978), cert. denied, 440 U.S, 949 (1979); In re Shain, 978 F.2d

850, 853-54 (4th Cir. 1992); United States v. Smith, 135 F.3d

963, 971 (5th Cir. 1998); Storer Communications, Inc, v. Giovan,

810 F.2d 580, 584-85 (6th Cir. 1987).

ete

6

poena seeking confidential source information or material.

The government must show that the information sought

is (1) highly material and relevant; (2) necessary or crit-

ical to the maintenance of the claim or defense; and (3)

not obtainable from other sources. See Branzburg, 408

U.S. at 725; Miller v. Transamerican Press, Inc., 621

F.2d 721, 726 (5th Cir.), modified on rehearing, 628 |

F.2d 932 (5th Cir. 1980); see also United States v. Burke,

700 F.2d 70, 77 (2nd Cir.), cert. denied, 464 U.S. 816

(1983).

Courts that have relied upon Justice Powell’s balanc-

ing test, instead of rigidly rejecting the existence of any

constitutional protection, continue to emphasize the

policy consequences of denying protection. As the

Third Circuit held in United States v. Cuthbertson with

reference to unpublished materials:

The compelled production of a reporter’s resource

materials can constitute a significant intrusion into

the newsgathering and editorial processes. Like the

compelled disclosure of confidential sources, it may

substantially undercut the public policy favoring

the free flow of information to the public that is the

foundation for the privilege. Therefore, we hold

that the privilege extends to unpublished materials

in the possession of CBS.

Cuthbertson, 630 F.2d 139, 147 (3rd Cir. 1980), cert.

denied, 449 U.S. 1126 (1981).

Similarly, the Ninth Circuit in Shoen v. Shoen, which

also addressed a subpoena to a book author as here, held

that news organizations should be free from:

the threat of administrative and judicial intrusion

into the newsgathering and editorial process; the dis-

advantage of a journalist appearing to be an investi-

gative arm of the judicial system or a research tool

7

of government or of a private party; the disincentive

to compile and preserve nonbroadcast material; and

the burden on journalists’s time and resources in

responding to subpoenas.

Shoen, 5 F.3d 1289, 1294-95 (9th Cir. 1993) (quoting

United States v. The LaRouche Campaign, 841 F.2d

1176 (1st Cir. 1988)).° In Shoen v. Shoen, 3 F.3d 412,

414 (9th Cir. 1995), (Shoen J/) the Ninth Circuit reiter-

ated that ‘‘all but one of the federal circuits to address

the issue have interpreted Branzburg . . . as establishing

a qualified privilege for journalists against compelled dis-

closure of information gathered in the course of their

work.”” The Court went on to set out a balancing test

in determining whether the privilege had been overcome,

following Justice Powell’s opinion in Branzburg.

The Second and Fourth Circuits have also embraced

constitutional protection in the form of a qualified

journalist privilege. The Fourth Circuit in Ashcraft v.

Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) recently

held that a sealing order was invalid because the assertion

of a journalists’s privilege, and subsequent finding of civil

contempt, were not based on a showing that a three-part

test established to overcome the privilege had been satis-

fied. See id. at 287-88 (citing Miller, 621 F.2d at 726).

In reaching this holding, the Fourth Circuit made clear

that the journalist’s privilege is grounded in the First

‘The Shoen Court further concluded, in holding that a

reporter’s newsgathering activities: were entitled to protection

regardless of whether there had been a promise of confidentiality,

that the “body of circuit case law and scholarly authority [is] so

persuasive that we think it unnecessary to discuss the question

further.” Shoen, 5 F.3d at 1295, “[W]hen facts acquired by a

journalist in the course of gathering the news become the target

of discovery, a qualified privilege against compelled disclosure

- comes into play.” Jd. at 1292,

8

Amendment as “recognized by the Supreme Court in

Pell [Pell v. Procunier, 417 U.S. 817, 834 (1974)] and

Branzburg.” Id. at 287.

In von Bulow v. von Bulow, 811 F.2d 136, 142 (2nd

Cir.), cert. denied, 481 U.S. 1015 (1987), the Second Cir-

cuit stated that “the process of newsgathering is a pro-

tected right under the First Amendment, albeit a quali-

fied one.”” The Court noted that this privilege was recog-

nized in Branzburg, which only rejected an absolute privi-

lege afforded a journalist, not a qualified privilege. Jd.

The von Bulow decision also establishes that a book

author, who has “obtained the information [sought] in

the course of gathering news for publication,” satisfies

the definition of “journalist” for purposes of invoking

the privilege. Jd. at 143-44; see also id. at 144 (test looks

to the “intent to use material — sought, gathered, or

received — to disseminate information to the public and

that such intent existed at the inception of the newsgath-

ering process’’),

Nine circuits have now interpreted Branzburg as estab-

lishing that a qualified privilege exists under the First

Amendment for at least some unpublished information.®

Eight federal circuits have held that the qualified privi-

lege applies to journalists faced with a subpoena seeking

SSee United States v. LaRouche Campaign, 841 F.2d 1176,

1182 (1st Cir, 1988); Bruno & Stillman, Inc.'v. Globe Newspaper

Corp., 633 F.2d 583 (1st Cir. 1980); United States v. Burke, 700

F.2d 70 (2nd Cir. 1982); United States v. Cuthbertson, 630 F.2d

139, 147 (3rd Cir. 1980); LaRouche v. National Broadcasting Co.,

780 F.2d 1134 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986);

Cervantes v. Time,-Inc., 464 F.2d 986 (8th Cir. 1972); Farr v.

Pitchess, 522 F.2d 464 (9th Cir. 1975); Silkwood v, Kerr-McGee

Corp., 563 F.2d 433 (10th Cir. 1977); Zerilli v. Smith, 656 F.2d

705 (D.C, Cir. 1981),

9

discovery of confidential sources.’ Instead of a blanket

rejection of the qualified privilege in grand jury proceed-

ings as adopted by the Fifth Circuit below, this Court

should acknowledge the vital public interests at stake and

require that lower courts balance the competing interests

accordingly, as Justice Powell urged and as adopted by

the majority of circuits, whether an explicit privilege is

recognized or not.

Il,

THE FIFTH CIRCUIT UNCONSTITUTIONALLY ABRO-

GATED THE QUALIFIED PRIVILEGE IN CRIMINAL

AND GRAND JURY PROCEEDINGS

The Fifth Circuit has followed the majority of juris-

dictions in recognizing First Amendment protection, in

the form of a qualified privilege or otherwise, against

compulsory disclosure of confidential sources in civil

proceedings. See, e.g., In re Selcraig, 705 F.2d 789 (5th

Cir. 1983); Bruno & Stillman, Inc. v. Globe Newspaper

Co., 633 F.2d 583 (1st Cir. 1980); United States v. Cap-

orale, 806 F.2d 1487, 1504 (11th Cir. 1986), cert. den-

ied, 482 U.S. 917 (1987). As the Fifth Circuit stated in

In re Selcraig: ‘We have recognized that the First Amend-

ment shields a reporter from being required to disclose

’ See Clyburn v, New World Communications, Inc., 903 F.2d

29 (D.C, Cir. 1990); United States v. LaRouche Campaign, 841

F.2d 1176 (1st Cir. 1988); LaRouche v, National Broadcasting Co.,

_ 780 F.2d 1134 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986);

United States v. Burke, 700 F.2d 70 (2nd Cir. 1983), cert. denied,

464 U.S. 816 (1983); United States v. Cuthbertson, 630 F.2d 139

(3d Cir. 1980), cert, denied, 449 U.S. 1126 (1981); Miller v. Trans-

American Press, Inc., 621 F.2d 721 (5th Cir.), modified on rehear-

ing, 628 F.2d 932 (1980), cert, denied, 450 U.S. 1041 (1981);

See Shoen v. Shoen, 5 F.3d at 1292 (9th Cir. 1993); Silkwood v.

Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977).

10

the identity of persons who have imparted information

to him in confidence.” Jn re Selcraig, 705 F.2d at 792

(citing Miller v. Transamerican Press, 621 F.2d 721 (Sth

Cir.), modified on rehearing, 628 F.2d 932 (5th Cir.

1980), cert. denied, 450 U.S. 1041 (1981)). The Fifth

Circuit went on to state that “‘[o] ur course was dictated

by our careful reading of the plurality and concurring

opinions in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct.

2646, 33 L.Ed.2d 626 (1972).” Id.

However, the Fifth Circuit has all but abandoned this

constitutional protection in criminal proceedings. In

1998, the Fifth Circuit decided United States v. Smith,

135 F.3d 963 (5th Cir. 1998), holding that there is no

protection or privilege under the First Amendment to

refuse to disclose nonconfidential information in res-

ponse to a subpoena in a criminal proceeding, /d. at 972.

Technically, the Smith decision did not reject the quali-

fied privilege with respect to confidential sources and

material since Smith only involved ‘‘on the record,”’ non-

confidential sources. Jd. at 971-72 (noting that both

“Miller and Selcraig recognized privileges meant to pro-

tect newsreporters from unnecessarily revealing the

identities of confidential sources.’’). Nevertheless, Smith

laid the groundwork for the Fifth Circuit to abrogate the

qualified privilege in grand jury proceedings in the case

below.

The Fifth Circuit in this appeal made two noteworthy

errors in holding that no constitutional protection applies

to journalists faced with a grand jury subpoena. First,

the court stated that “‘no circuit court has recognized a

qualified testimonial privilege in the context of a criminal

grand jury.” (Slip op., at p. 8). However, the Third Cir-

cuit affirmed the decision in Jn re Williams that a quali-

11

fied First Amendment reporter’s privilege prohibited

compelled disclosure of confidential sources in the con-

text of a grand jury.® Second, relying solely on Smith,

the Fifth Circuit below held that the journalists’s privi-

lege is ‘ineffectual against a grand jury subpoena absent

evidence of governmental harassment or oppression.”’

(Slip op., at p. 6). The Fifth Circuit’s interpretation of

Branzburg essentially denies any First Amendment pro-

tection whatsoever in the criminal and grand jury con-

text, since all that is left is the “harassment” standard

codified for the protection of all witnesses by Fed. R.

Crim. P. 17(c). The Fifth Circuit failed to properly

analyze the purpose of the privilege, which is not to serve

as a personal testimonial privilege benefiting a special

class of witness, but to protect the public’s “‘right to

know” under the First Amendment. While journalists

are necessarily the individuals who must assert the privi-

lege, the protection against compusory disclosure accrues

to the benefit of the confidential source, and more gen-

erally to the public as a whole. By misconceiving the pur-

pose of the privilege, the Fifth Circuit was left with the

easier decision of rejecting a personal testimonial privi-

lege, which was not the issue presented. Thus, the Fifth

Circuit perpetuated the error made in Smith of viewing

the privilege or balancing test as benefiting journalists as

a class of witness instead of the public’s right to know

under the First Amendment.

Sin re Williams, 766 F. Supp. 358 (W.D. Pa. 1991), aff’d by

equally divided court, 963 F.2d 567 (3d Cir. 1992) (en banc)

(quashing grand jury subpoena seeking confidential informa-

tion}; see also In re Grand Jury 95-1, 59 F.Supp.2d 1 (D.D.C.

1996) (implicitly recognizing First Amendment protection in grand

jury context for confidential information, but explicitly rejecting a

reporter’s privilege for nonconfidential information),

Fn a ee ee’

12

A disturbing distinction drawn by the Fifth Circuit and

other circuits is the availability of the privilege in civil but

not criminal proceedings, where the balancing of interests 3

“is entirely inapplicable.” (Slip op., at pp. 7-8). Yet, no

other testimonial privilege depends for its existence on

the nature of the case in which the testimony is deemed '

relevant. Indeed, it makes little sense to condition the

availability of a testimonial privilege on the type of case

in which a subpoena is issued — journalists, and more

importantly their potential sources, are left uncertain as

to whether any protection will ultimately be afforded.

The more logical approach is to apply the balancing test,

even if more weight is accorded either the governmental

interest or the defendant’s fair trial rights, not to aban-

don the balancing test altogether.

Justice Powell’s concurrence in Branzburg supports a

case-by-case approach that balances the interests regard-

less of the forum in which the privilege is asserted:

The asserted claim of privilege should be judged on

its facts by the striking of a proper balance between

freedom of the press and the obligation of all citi-

zens to give relevant testimony with respect to crim-

inal conduct. The balance of these vital constitu-

tional and societal interests on a case-by-case basis

accords with the tried and traditional way of adjudi-

cating such questions.”

Branzburg, 408 U.S. at 710 (Powell, J., concurring). It is

important to note that Justice Powell in Branzburg advo-

cated a case-by-case balancing test in the context of ;

grand jury proceedings as presented here, not just crim-

inal or civil proceedings. Justice Powell was correct not

to distinguish between forums because there is no legiti-

mate rationale for distinguishing between criminal, grand

jury, and civil proceedings for purposes of applying con-

a Se ene

13

stitutional protections. This Court should grant certiorari

in this case to clarify the application of the qualified

privilege or balancing test in all forums and proceedings

in which the press is subpoenaed to produce confidential

information or identify confidential sources.

III,

STRONG PUBLIC POLICY RATIONALES SUPPORT

RECOGNITION OF A QUALIFIED JOURNALIST PRIVI-

LEGE WITH RESPECT TO CONFIDENIAL SOURCES

AND INFORMATION

The public policy supporting recognition of constitu-

tional protection against compelled disclosure of confi-

dential information and sources is significant. An inde-

pendent press provides information the public needs to

make important decisions about the functioning of pub-

lic and private institutions. In response to this need,

broadcasters and publishers produce scores of news stor-

ies each day. By their very nature, the events that are

of interest to the public and therefore newsworthy —

actions of government officials, crime, fires, accidents,

and natural disasters — often result in civil and crim-

inal litigation. The job of the press makes it particularly

vulnerable to subpoenas issued by the government to

gather information, which adversely affects the free flow

of information to the public.

With respect to confidential sources, otherwise pub-

licly unavailable information is often conveyed to journ-

alists under a promise of confidentiality. If no qualified

privilege exists to protect this promise of confidentiality,

important information that should be made public will

stay buried. If a reporter reveals a confidential source,

he may be liable in damages to the source for breaking his

14

promise of confidentiality.? If a source knows that his

identity will not be protected, there is no incentive to

provide the information, thus cutting off the flow of

information to the public. This self-evident fact under-

scores how the Fifth Circuit, relying on Smith, erred by

misperceiving the basis for the privilege as somehow

protecting a special class of witness.

In light of these essential and unique functions of the

press, which distinguish the press from other private

citizens, failure to recognize a journalist’s privilege

applicable to confidential information will have pro-

found consequences. Abrogation of the privilege would

result in severe adverse results contrary to the public

interest: (1) the free flow of information to the public

will be hampered as confidential informants come to

understand that their identity and information will not

be protected; (2) the public will begin to think of journ-

alists as investigators for the government and private liti-

gants, as opposed to independent newsgatherers serving

the public interest; (3) the press will be burdened by an

overwhelming number. of requests for assistance by liti-

gators in civil and criminal cases; and (4) journalists will

curtain their research if they are required to serve as evi-

dence collectors in addition to their traditional role as

people who gather and disseminate news and informa-

tion.

The nature of the proceeding in which the subpoena is

issued should not be determinative of the existence of

constitutional protection. The very same constitutional

and public policy concerns regarding a free press are

9 See Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (hold-

ing a reporter liable for breaking promise of confidentiality to a

source).

15

!

present in the context of criminal proceedings, including

grand juries, as in civil litigation. Even assuming that the

interests of the government or criminal defendant may be

heightened in criminal or grand jury proceedings, it is not

a difference in kind but a matter of degree. The public

interest in a free press, and the constitutional dimen-

sions of press activity, remain unchanged, !°

The constitutional considerations at issue are weighty,

and the public policy rationales for recognizing a journ-

alist’s qualified privilege are significant and real. This

Court should take this opportunity to confirm the exis-

tence of the qualified journalist privilege to prevent the

compelled disclosure of confidential source information

and material in response to a grand jury’s subpoena

absent the application of a balancing test on a case-by-

case basis. This Court should reiterate the three-prong

test set forth in Justice Powell’s concurring opinion in

Branzburg, refined and utilized by many lower federal

circuit courts, to determine if the government has met its

burden to pierce the qualified privilege. The government

must show that the information sought is (1) highly

10The U.S. Justice Department recognizes that newsgather-

ing is essential to preserving a free press, as evidenced by its inter-

nal policy and procedures for issuing subpoenas to the press

implemented by the Nixon Administration’s Justice Department

in 1973. See 28 C.F.R, 50.10 (2000) (Attorney General’s “Policy

with regard to the issuance of subpoenas to or filing of criminal

charges against members of the news media”). The Justice Depart-

ment requires that a U.S. Attorney obtain authorization from the

Attorney General before serving subpoenas on members of the

press, Id. § 50.10; see also id. § 50.10(f)(2), (£)(3) (requiring that

federal authorities demonstrate that any information sought — not

just confidential source information — is ‘‘essential to the success-

ful completion of the litigation in a case of substantial import-

ance,” and cannot be obtained from “alternative nonmedia

sources”),

16

material and relevant; (2) necessary or critical to the

maintenance of the claim or defense; and (3) not obtain-

able from other sources, See Branzburg, 408 U.S. at 725;

Miller, 621 F.2d at 726; see also United States v. Burke,

700 F.2d 70, 77 (2nd Cir.), cert. denied, 464 U.S. 816

(1983). The party seeking disclosure of a confidential

informant’s identity bears the burden of proving by sub-

stantial evidence that these three requirements have been

met. Miller, 621 F.2d at 726. When the government has

not made this showing, courts should be more willing to

accept the argument that the government is either using

its subpoena powers to harass the press, a danger recog-

nized by this Court in Branzburg, 408 U.S. 710, or simply

abrogating its own duty to investigate criminal activity.

The mission of the press to inform the public will

certainly suffer without the protection offered by the

qualified privilege, a result that Justice Powell cautioned

against in his concurrence in Branzburg: “[w]e do not

hold . . . that state and federal authorities are free to

‘annex’ the news media as an ‘investigative arm of the

government.’ ” Branzburg, 408 U.S. at 709 (Powell, J.

concurring). The resulting harm is to the public, for

whom a free press is designed to benefit. This Court is

presented with an opportunity to minimize the harm

inflicted on the public by recognizing the journalist’s

qualified privilege and clearly articulating its scope under

the First Amendment.

CONCLUSION

Allowing unrestrained subpoenas for a journalist’s

work product in criminal and grand jury proceedings

will seriously affect the vitality of the press. Reason-

able journalists will fear that the use of similar sub-

17

poenas will allow prosecutors to use journalists as pri-

vate investigators, thereby restricting the free flow of

information to the public. Therefore, amici curiae urge

this Court to explicitly recognize that the qualified

journalist’s privilege protects Petitioner Leggett’s confi-

dential sources and information, and that a balancing

test should apply to determine whether compelled dis-

closure is appropriate.

Whether conceived as an explicit privilege or as a bal-

ancing test to further constitutional protections, the

government must demonstrate that the specific, known

information sought is highly relevant to the case, not

merely duplicative or cumulative, and all reasonable

alternate sources of the information have been exhausted.

Otherwise, the presumption should be that the govern-

ment is infringing on the protections afforded the press,

and the public, under the First Amendment.

Respectfully submitted,

CHARLES L, BABCOCK

ROBERT P. LATHAM

JOHN K, EDWARDS

JACKSON WALKER LLP

1100 Louisiana Street

Suite 4200

Houston, Texas 77002

(713) 752-4200

Telecopier:

(713) 752-4221

Counsel for Amici Curiae.