In 2010, before an audience of college students, Justice Sotomayor remarked that the Supreme Court is likely to have to rule on the issue of balancing national security and freedom of speech. See David Batty, WikiLeaks War Logs Posting "Will Lead to Free Speech Ruling," The Guardian (Aug. 26, 2010) (HTML). In recent years, courts have increasingly struggled to balance our nation’s security needs with our constitutional right to free speech. Nowhere has this tension been more apparent than in the WikiLeaks saga; the ongoing battle between federal regulators who wish to shut down the website for publishing sensitive government documents leaked to the website by confidential sources. Scholars have speculated whether staff members of WikiLeaks could claim a reporter's privilege if the federal government attempted to compel one of them to disclose the source of documents published on the website. See Jonathan Peters, WikiLeaks Would Not Qualify to Claim Federal Reporter's Privilege in Any Form, 63 Fed. Comm. L.J. 667, 670 (2011) (PDF).
Last week, the First Circuit made passing reference to an increasingly relevant circuit split over whether journalists may invoke the so-called “reporter’s privilege” to avoid disclosing a confidential source to a grand jury. United States v. Moloney (In re Price), Nos. 11-2511 & 12-1159, at n.3 (1st Cir. July 6, 2012). Writing for the Seventh Circuit in 2003’s McKevitt v. Pallasch, the esteemed Judge Posner summarized the split in authority as follows:
A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter's privilege, though they do not agree on its scope. See, e.g., In re Madden, 151 F.3d 125, 128-29 (3d Cir. 1998); United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); Shoen v. Shoen, 5 F.3d 1289, 1292-93 (9th Cir. 1993); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988); von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986). A few cases refuse to recognize the privilege, at least in cases, which Branzburg was but this case is not, that involve grand jury inquiries. In re Grand Jury Proceedings, 5 F.3d 397, 402-03 (9th Cir. 1993); In re Grand Jury Proceedings, 810 F.2d 580, 584-86 (6th Cir. 1987). Our court has not taken sides.
Some of the cases that recognize the privilege, such as Madden, essentially ignore Branzburg, see 151 F.3d at 128; some treat the "majority" opinion in Branzburg as actually just a plurality opinion, such as Smith, see 135 F.3d at 968-69; some audaciously declare that Branzburg actually created a reporter's privilege, such as Shoen, 5 F.3d at 1292, and von Bulow v. von Bulow, supra, 811 F.2d at 142; see also cases cited in Schoen 5 F.3d at 1292 n. 5, and Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975). The approaches that these decisions take to the issue of privilege can certainly be questioned. See In re Grand Jury Proceedings, supra, 810 F.2d at 584-86. A more important point, however, is that the Constitution is not the only source of evidentiary privileges, as the Supreme Court noted in Branzburg with reference to the reporter's privilege itself. 408 U.S. at 689, 706. And while the cases we have cited do not cite other possible sources of the privilege besides the First Amendment and one of them, LaRouche, actually denies, though without explaining why, that there might be a federal common law privilege for journalists that was not based on the First Amendment, see 841 F.2d at 1178 n. 4; see also In re Grand Jury Proceedings, supra, 5 F.3d at 402-03, other cases do cut the reporter's privilege free from the First Amendment. See United States v. Cuthbertson, 630 F.2d 139, 146 n. 1 (d Cir. 1980); In re Grand Jury Proceedings, supra, 810 F.2d at 586-88; cf. Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 n. 2 (2d Cir. 1999).
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Some cases that recognize a reporter's privilege suggest that it can sometimes shield information in a reporter's possession that comes from a nonconfidential source; in addition to the Madden, Schoen, and La Rouche cases cited above see Gonzales v. National Broadcasting Co., supra, 194 F.3d at 33; United States v. Burke, 700 F.2d 70, 76, 78 (2d Cir. 1983); United States v. Cuthbertson, supra, 630 F.2d at 147. Others disagree. United States v. Smith, supra, 135 F.3d at 972; In re Grand Jury Proceedings, supra, 810 F.2d at 584-85. The cases that extend the privilege to nonconfidential sources express concern with harassment, burden, using the press as an investigative arm of government, and so forth; see the Gonzalez, LaRouche, and Cuthbertson opinions. Since these considerations were rejected by Branzburg even in the context of a confidential source, these courts may be skating on thin ice.
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It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas. Fed. R. Crim. P. 17(c); CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002); EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 700 (7th Cir. 2002). We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist. See Cohen v. Cowles Media Co., 501 U.S. 663, 669, 115 L. Ed. 2d 586, 111 S. Ct. 2513 (1991); New York Times Co. v. Jascalevich, 439 U.S. 1317, 1322, 58 L. Ed. 2d 25, 99 S. Ct. 6 (1978); cf. United States v. Ahn, 343 U.S. App. D.C. 392, 231 F.3d 26, 37 (D.C. Cir. 2000). The approach we are suggesting has support in Branzburg itself, where the Court stated that "grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth." 408 U.S. at 707-08.
339 F.3d 530, 533 (7th Cir. 2003).
The Supreme Court has addressed the reporter’s privilege in a written opinion only once: Branzburg v. Hayes, 408 U.S. 665 (1972). While the First Circuit’s decision in U.S. v. Moloney (In re Price) last week did not turn on the question of whether, under Branzburg, there can ever be a reporter’s privilege, the issue will inevitably resurface at some point in the not-so-distant future. And when it does, the justices may feel obligated to resolve the entrenched circuit split over this difficult, but incredibly important question of federal law.