I. BOTH THE FIRST AMENDMENT AND FEDERAL COMMON LAW RECOGNIZE A QUALIFIED PRIVILEGE BY JOURNALISTS TO RESIST CRIMINAL PROCESS.
Both the first amendment and federal common law recognize a qualified privilege by journalists to resist criminal process. This brief first analyzes both the Supreme Court’s holding and reasoning in Branzburg v. Hayes, 408 U.S. 665 (1972), and its interpretation by lower circuits for the reporter’s privilege under the First Amendment. The brief then examines Fed. R. Evid. 501 and the evolution of federal common law related to the reporter’s privilege.
The Tenth Circuit reviews a district court’s order granting a motion to quash a grand jury subpoena for an abuse of discretion. See In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (10th Cir. 2010). “A district court abuses its discretion when it commits an error of law.” United States v. Commanche, 577 F.3d 1261, 1266 (10th Cir. 2009). Whether the First Amendment or the federal common law recognizes a qualified privilege by journalists to resist criminal process is a pure question of law. The Tenth Circuit reviews purely legal questions de novo. See In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990).
A. The District Court Correctly Recognized a Qualified Reporter’s Privilege Arising under the First Amendment That Protects Against Disclosure of Confidential Source Information in a Criminal Context.
The district court correctly held that, “based on Silkwood, . . . the Tenth Circuit would recognize a qualified privilege by journalists to resist criminal process.” R. at 3. This holding is consistent with both the Supreme Court’s reasoning in Branzburg and with the interpretation of Branzburg by a vast majority of circuits.
1. The Supre...
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Further, strong public policies exist in favor of protecting journalists from making compelled disclosures. Protection for the press serves the private end of encouraging individuals to provide journalists with truthful, newsworthy information anonymously. Such protection also serves the important public function of keeping the public informed, and providing essential information for making governing decisions in a democracy. See Ashcraft, 218 F.3d at 287. Indeed, confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public by keeping it informed. Therefore, public policies also strongly favor shielding journalists from involuntary disclosures of confidential news sources, including in criminal cases.
In the majority opinion, Justice White wrote “Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were” The court also noted that the paper was a sponsored newspaper by the school which was not intended to be seen by the public, but rather for journalism students to write articles based off of the requirements for journalism 2 class, and all subjects must be appropriate for the school and all its
In the Supreme Court case of the New York Times Co. vs. United States there is a power struggle. This struggle includes the entities of the individual freedoms against the interests of federal government. It is well known that the first amendment protects the freedom of speech, but to what extent does this freedom exist. There have been instances in which speech has been limited; Schenck vs. United States(1919) was the landmark case which instituted such limitations due to circumstances of “clear and present danger”. Many have noted that the press serves as an overseer which both apprehends and guides national agenda. However, if the federal government possessed the ability to censor the press would the government restrain itself? In the case of the Pentagon Papers the necessities of individual freedoms supersedes the scope of the national government.
“The Reporter’s Privilege Compendium: An Introduction.” Reporters Committee for Freedom of the Press, n.d. Web. 15 November 2013.
3. The court stated: "We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
Ohio and Miranda v. Arizona have great impacts on the United States criminal justice system. The decision of Mapp v. Ohio ultimately aids in the strengthening of the Fourth Amendment with the extension of the exclusionary rule. Until this ruling, states did not have to obey this rule and could get away with warrantless searches. With this order, the privacy of United States citizens is safeguarded. Moreover, the Supreme Court created the “Miranda rights” as a result of Miranda v. Arizona. The Miranda rights establish that upon a person 's arrest, the police is mandated to inform that individual of his basic rights, which include “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed” (9). Essentially, people are given the right to not make any “self-incriminating statements”
If the judge finds that media coverage would interfere materially with the rights of a party to a fair trial, he/she shall deny permission for media coverage. COR 16.02(b).
Holloway, Carson. "Profiling and the Constitution." Public Discourse. N.p., n. d. Web. 4 Mar. 2014. .
This is indeed a touchy subject. This particular court case is one that has sparked a great deal of debate and one that requires some understanding of Miller v. California and New York v. Farber. Two semesters ago, my Media Law class spent a little time reviewing each of these cases plus the one we are discussing and even after doing so, I still find this ruling a bit disturbing.
The Fourth Amendment to the Constitution states that individuals have the right to be secure in their persons, houses, papers, and impacts, against absurd searches and seizures, yet the issue close by here is whether this additionally applies to the ventures of open fields and of articles in plain view and whether the fourth correction gives insurance over these also. With a specific end goal to reaffirm the courts' choice on this matter I will be relating their choices in the instances of Oliver v. United States (1984), and California v. Greenwood (1988) which bargain straightforwardly with the inquiry of whether an individual can have sensible desires of protection as accommodated in the fourth correction concerning questions in an open field or in plain view.
The issue of pretrial publicity is a maze of overlapping attentions and interwoven interests. Lawyers decry pretrial publicity while simultaneously raising their own career stock and hourly fee by accumulating more if it. The media both perpetrate and comment on the frenzy -- newspapers and television stations generate the publicity in the first place and then actively comment on the likely effect that the coverage will have on the trial. When a high profile case is brought to trial, many media outlets report not only on the details of the trial, but also details about the persons involved, in particular the defendant. Much of the information reported regarding the case is released before the trial starts. Furthermore, media outlets may not only report facts, but also present the information in a way that projects the culpability of the defendant. By allowing pretrial publicity of court cases, potential jurors are given information that could sway their opinion of the defendant even before the trial begins, and how they interpret the evidence given during the trial. The right of a criminal defendant to receive a fair trial is guaranteed by the Sixth Amendment of the U.S. Constitution. The right of the press, print and electronic media, to publish information about the defendant and the alleged criminal acts is guaranteed by the First Amendment. These two constitutional safeguards come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury. However, there is a compromise between these two Constitutional rights, which would allow for the selection of an impartial jury and allow the media to report on the details of the case. The media should only be able to report information once the trial has...
Rentschler, Carrie A. & Co. “Victims' Rights and the Struggle Over Crime in the Media.” Canadian Journal of Communication 32.2 (2007): 219-39. Stevens, Aaron P. “Arresting Crime: Expanding the Scope of DNA Databases in America.” Texas Law Review 79.4 (2001): 921-60.
1. Explain prior restraints, defamation, and sedition of the freedom of freedom of speech and freedom of the press
Research also suggests that the media is a major decider in what crime cases get chosen to air on the news. While it was previously thought that what went on the news was arbitrarily picked or based on the most interesting cases, it turns out that it is not quite the case. J...
The first amendment grants the freedom of the press, speech, and religion. The first amendment also grants that the media is immune from
2013 jan 04: B.1. Web. 3 Dec. 2013. . ProQuest Staff. "At Issue: Privacy and the Press."