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Do journalist shield laws protect bloggers? An Illinois Bar Journal article

My column from October (which is not nearly as exhaustive):

-------- Original Message --------
Subject: Illinois Bar Journal article
Date: Fri, 10 Mar 2006 16:21:37 -0800
From: Helen W. Gunnarsson <gunnarssonhg@comcast.net>
To: <declan@well.com>

[Note snipped. --DBM]


By Helen W. Gunnarsson

Would Illinois' reporter's privilege have shielded Judy Miller?

And does it protect bloggers? It all depends, a media lawyer says.


Former New York Times reporter Judith Miller was herself as much of a story
as some of her sources. Miller refused to testify before a grand jury
empaneled to investigate whether and who disclosed that Valerie Plame, the
wife of ambassador Joseph Wilson, was a CIA covert agent. Such a disclosure,
if made by anyone having authorized access to classified information, is a
crime under federal law. 50 USC section 421.

Miller refused to comply with the subpoenas served upon her and moved to
quash them, arguing, among other things, that the First Amendment grants
journalists a constitutional right to conceal their confidential sources
even against the subpoenas of grand juries, and that reporters have a common
law evidentiary privilege permitting them to conceal confidential sources'
identities. The United States District Court for the District of Columbia
held that neither the First Amendment nor the federal common law provides
protection for journalists' confidential sources in the context of a grand
jury investigation. The court of appeals for the District of Columbia upheld
the district court's order, although the appellate panel was divided on
whether any such privilege exists at common law.

Notwithstanding the courts' orders, Miller continued to refuse to testify.
The district court then ordered her jailed under 18 USC section 1826, the
Recalcitrant Witness Statute. After 85 days in jail, Miller agreed to
testify as ordered and was released.

Though there is no federal constitutional privilege for reporters, and
though the existence of any federal common law privilege is questionable,
most states, including Illinois, have enacted their own statutory versions
of some sort of reporter's privilege. If subpoenaed in state court, would
Illinois' privilege have enabled Judith Miller - or some other reporter,
say, one employed by an Illinois newspaper - to successfully resist
testifying? What about an independent blogger? The answers to these
questions, according to Springfield attorney Donald Craven, general counsel
to the Illinois Press Association, are a clear "it depends" and "maybe."

The Illinois shield statute

Illinois' statute on the reporter's privilege is found at 735 ILCS 5/8-901
et seq. The statute provides that no court may compel any person to disclose
the source of any information obtained by a reporter except as provided
therein. Craven notes that the Illinois Appellate Court has held that the
privilege exists even if a reporter has made no promise of confidentiality.
Scott v Silverstein, 89 Ill App 3d 1039, 412 NE2d 692 (1st D 1980).

The statute defines "reporter" as "any person regularly engaged in the
business of collecting, writing or editing news for publication through a
news medium on a full-time or part-time basis." "News medium," in turn,
means "any newspaper or other periodical issued at regular intervals whether
in print or electronic format and having a general circulation" as well as
broadcast media such as radio and television stations. 735 ILCS 5/8-902.

Once a person has asserted the privilege conferred by 735 ILCS 5/8-901, the
entity seeking that information may file a written request with the court
for an order divesting the person of the privilege and ordering him or her
to disclose the source of the information. 735 ILCS 5/8-903. The request
must allege the name of the reporter and news medium with which the reporter
was connected at the time he or she obtained the information; what specific
information is sought and how it is relevant to the proceedings; and either
a specific public interest which would be adversely affected if the factual
information sought were not disclosed or, in libel or slander cases, the
need for disclosure of the information sought to the proof of the
plaintiff's case. (In libel or slander cases, the plaintiff must also
provide the court with a prima facie showing of falsity of the alleged
defamation and actual harm or injury due to the alleged defamation.) 735
ILCS 5/8-904.

To grant an application for divestiture and disclosure under the statute,
the court must find that the information sought does not concern matters
that the laws of either Illinois (though not other states) or the federal
government require to be kept secret. Additionally, the court must find that
all other available sources of information have been exhausted and that
either disclosure is essential to the protection of the public interest or,
in libel or slander cases, that the plaintiff's need for disclosure
outweighs the public interest in protecting the confidentiality of
informational sources that a reporter uses as part of gathering news. The
statute permits a court to make the disclosure subject to any protective
conditions that the court may deem necessary or appropriate. 735 ILCS

Exhaustion of other sources is key

Craven says the public interest and exhausting all other available sources
of information are the keys to whether a reporter will succeed in refusing
to testify if subpoenaed in an Illinois state court. In In re Arya, 226 Ill
App 3d 848, 589 NE2d 832 (4th D 1992), in which Craven himself represented
the defendant, a Peoria television reporter, the court found that the
seeker's failure to show that all other available sources of information had
been exhausted trumped a public interest that, in Craven's words, "screamed
for disclosure."

Arya, the reporter, possessed videotapes and notes pertaining to a triple
murder and armed robbery, which the state believed contained names and
interviews of at least three persons with significant information pertinent
to its investigation of those crimes. The appellate court found that the
state had contacted all available sources and that the police had conducted
a thorough and comprehensive investigation. Neverthe-less, the court vacated
and remanded the trial court's order divesting Arya of his reporter's
privilege because it did not feel that the record sufficiently supported a
finding of exhaustion.

The court commented that the trial court should narrowly tailor any order of
divestiture to require a reporter to produce only the information for which
the petitioner met all the statutory prerequisites, and, if necessary, to
conduct an in camera inspection of the material in question before directing
it to be produced to ensure that its production would not violate the
protections the legislature intended to provide to reporters. The strong
public interest in solving the crimes of violence at issue, then, did not
clearly outweigh the public interest in enabling reporters to protect their

With the proliferation of blogs, the question "Who is a reporter?" has
gained prominence. Is a blogger a "reporter" within the meaning of Illinois'
statute on reporter's privilege? The Illinois appellate courts haven't yet
addressed that issue.

Craven thinks the answer may depend on the nature of the blog and whether
the blogger is performing the functions of a reporter. Journalist Declan
McCullagh, chief political correspondent for CNET Network's News.com and
editor of the Politech website and mailing list, considered this question in
a column published October 24, 2005, discussing whether a federal
journalist's shield law should be approved. While some have expressed
concerns about a lack of accountability on the part of bloggers, McCullagh
himself expresses a concern for independent online reporters, who McCullagh
feels "are producing some of the most interesting journalism on the Internet
today," becoming second-class journalistic citizens.

Craven says it's not unusual for small organizations and individual
reporters with tight budgets to roll over when presented with requests for
the disclosure of source information. Should reporters always vigorously
resist such requests, as Miller did? Craven says he can't comment on
Miller's actions, but he does remark that "[u]sing the reporter's shield to
protect oneself or flaws in one's story makes it harder for all of us [who
are championing press integrity]."

The U.S. Court of Appeals' decision rejecting Miller's appeal is cited as In
Re Grand Jury Subpoena, Judith Miller, No. 04-3138, consolidated with Nos.
04-3139 and 04-3140, decided Feb. 15, 2005, and reissued Feb. 3, 2006. The
opinion is available on line at
University of Chicago law professor Geoffrey Stone has summarized the Miller
controversy and provided some thoughts on civil disobedience in an October
27, 2005, University of Chicago Law School Faculty Blog entitled Judy
Miller: 85 Days for What? available at
http://uchicagolaw.typepad.com/faculty/2005/10/judy_miller_85_.html. Craven
authored Chapter 14: Reporter's Privilege in the Illinois Press
Association's handbook, which is available on line at
http://www.il-press.com/main.asp?SectionID=42&S ubSectionID=661&TM=51798.41.
McCullagh's October 24, 2005, column is available at


Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be
reached at  gunnarssonhg@[nospam]comcast.net

Posted by Declan McCullagh on Mar 29, 2006 in category free-speech

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