Summer 2005
Congress Proposes Federal "Shield" Law to Protect Journalists
Currently in the United States, all states (except Wyoming) and the District of Columbia have either recognized or codified some type of reporting or news gathering privilege. Pennsylvania has had such a law on its books since 1937. In the post-911 era, however, journalists in both the print and broadcast media have found themselves under ever increasing pressure from state and federal prosecutors to reveal confidential sources of information. Most recently, Judith Miller of the New York Times was imprisoned for her refusal to testify in the federal investigation regarding the leak of a CIA officer's identity. Other journalists, faced with fines and/or imprisonment, have been pressured into turning over their notes of conversations with confidential sources.
The existence or extent of a "federal shield privilege" has been a mystery for decades. This arises mainly from the United States Supreme Court's decision in Branzburg v. Hayes. Although the Court held that a reporter did not have a constitutional privilege from testifying before a grand jury, federal courts interpreting that decision since have split over the issue in a variety of ways.
In Branzburg, by a 5-4 decision, Justice White, writing for the majority, refused to recognize an absolute privilege on behalf of a reporter to refuse to testify before a grand jury when he had actually witnessed the commission of several drug-related crimes while with a confidential source the grand jury was investigating. Interestingly, Justice White stated in his decision that "Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas." Justice Stewart, dissenting, observed, however, that the free flow of information to the public protected by the Freedom of the Press guarantees of the Constitution also protected the process of news gathering which in turn, recognized a right to a confidential relationship between a reporter and his source. "When neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished."
Congress is now considering passage of a federal "shield" law. What would the proposed federal shield law provide? The House and Senate versions basically provide the following types of protection. First, it would provide that no federal entity could compel a reporter, publisher, station or newspaper, etc. to testify or produce any document unless the government first demonstrated by clear and convincing evidence that it (1) had unsuccessfully attempted to obtain the same information from other reasonable sources, and (2) that there is a reasonable basis to believe a crime has occurred and the testimony or document sought is essential to the investigation, prosecution or defense of that crime, or is somehow substantially important to a dispositive issue in that matter. It further provides that even in those cases where the testimony or documents are properly sought under the statute, such access must be narrowly tailored by subject matter and time period. It further prohibits the disclosure of confidential sources of information, which would reasonably lead to the discovery of the identity of such a source. The statute goes on to prohibit disclosure from certain types of third parties and sets forth that publication or dissemination of testimony or documents does not constitute a waiver of its protections. Debate continues in Congress on the issue and several reporters still remain in jail for refusing to reveal their sources.
Here in Pennsylvania, the Pennsylvania Supreme Court held in the companion cases of Commonwealth v. Tyson and Commonwealth v. Bowden that reporters could be compelled to disclose their notes concerning their interviews with a murder suspect. The Pennsylvania Supreme Court did, however, hold that a sanction of $100 a minute for refusal to turn over the information was coercive. The debate on both the federal and state level will continue.
Pennsylvania Superior Court Rules that Names of Jurors in a Criminal Case Need Not be Disclosed to Media
The Pennsylvania Superior Court ruled recently that the names of jurors in a murder case did not have to be released to the media and that no common law right of access to such information existed under Pennsylvania law. In Commonwealth v. Long, the media sought the names of jurors deciding the case. Although jurors were referred to only by number, the press was present during jury selection. The day after the trial concluded, both the print and broadcast media filed petitions to intervene and to obtain the jurors' names and addresses. Interestingly, a newspaper had obtained the names and addresses of the jurors and had interviewed several of them through the County payroll records.
The Court first analyzed whether the media had a right to such information under United States and Pennsylvania constitutional guarantees. The Court found that although the First Amendment guarantees the right of access to court proceedings, it does not grant a similar right to the disclosure of names and addresses of impaneled jurors. The Court also found that jurors have a right of privacy which, in balance, outweighs any right of access to their identities by the media.
The Court was equally not persuaded that a common law right of access existed to such information. The Court rejected the case law brought to its attention by the media defendants which showed a common law right to the examination of judicial records and documents filed with the Court. The Court found that juror lists were not "judicial documents" as they are not formally filed with the Court nor required to be so and would not constitute part of the certified record on appeal. Thus, in Pennsylvania at the moment, one may be entitled to a jury of his or her peers, but one is not entitled to know who they are.
Media's Right of Access to Juvenile Proceedings is Murky at Best
Questions often arise as to whether reporters may or may not attend juvenile proceedings, particularly juvenile delinquency proceedings. It must be noted that juvenile proceedings are divided into two general categories, dependancy proceedings and delinquency proceedings. Since issues of access arise almost exclusively in delinquency proceedings, it is necessary to review the Juvenile Act provisions that provide for what types of juvenile delinquency hearings the public and, therefore, the press have a right of access.
By statute, the following types of proceedings are to be open to the public: (1) delinquency proceedings where the child is 14 years of age or older at the time of the alleged act of delinquency and where the alleged act would be considered a felony if committed by an adult, and (2) delinquency proceedings where the child is 12 years of age or older at the time of the alleged act of delinquency and where the alleged conduct would constitute one or more of the following offenses: (a) murder, (b) voluntary manslaughter, (c) certain types of aggravated assault, (d) certain types of arson, (e) involuntary deviate sexual intercourse, (f) kidnapping, (g) rape, (h) certain types of robbery, (i) robbery of a motor vehicle, and (j) any attempt or conspiracy to commit any of these offenses. However, notwithstanding the statutory guarantee of openness in these circumstances, if the juvenile's counsel and the attorney for the Commonwealth agree to close all or a portion of the hearing, such an agreement will supersede such guarantees of openness. This section raises serious constitutional questions by permitting the abrogation of the openness of court proceedings to the agreement of two lawyers. This issue has yet to be squarely addressed by any of the appellate courts in Pennsylvania. Keep in mind that the same section also permits the Court, at its discretion, to maintain the confidentiality of certain information or records including mental health, medical or juvenile institutional documents or juvenile probation reports.
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