“The District Judge held that ‘a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment (free speech and press) protection…’.”
The journalist’s privilege, also known as the newsperson’s privilege, is a “shield law granting media persons the privilege of declining to reveal confidential sources of information” (Barron’s Law Dictionary).
In the Philippines, the law or statute that protects journalists from revealing the sources of a news item, report, or information is Republic Act 11458.
It must be noted that RA 11458 (2018) is an amendment of RA 1477 (year 1956), which in turn amended RA 53 (year 1946), the first Philippine law on journalistic privilege.
The 1956 amendment included the “columnist” within the coverage of the privilege, and the statute added that the journalist is not immune from civil or criminal liability despite invoking the privilege.
The coverage was further expanded in RA 11458 from authors of written publications to include those of other forms of mass media, such as a “… duly recognized or accredited reporter, writer, contributor, opinion writer, editor, columnist, manager, media practitioner involved in the writing, editing, production, and dissemination of news for mass circulation, of any print, broadcast, wire service organization, or electronic mass media, including cable TV and its variants.”
Under the Philippine statutory privilege, the journalist cannot be compelled to reveal the source of any news item, report or information that he or she has received in confidence.
However, if the journalist voluntarily testifies and discloses the source of the news or information, it will not apply.
In the leading United States case of Branzburg v. Hayes, the issue presented was “whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.” The US Supreme Court categorically declared that it did not (408 U.S. 665 [1972]).
The Branzburg case addressed the following facts:
First case. On November 15, 1969, the Courier-Journal carried a story under petitioner’s [Branzburg] by-line describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marijuana, an activity which, they asserted, earned them about $5,000 in three weeks. The article stated that the petitioner had promised not to reveal the identity of the two hashish makers (408 U.S. 665 [1972]).
Second case. On January 10, 1971, Branzburg published a story which described in detail the use of drugs in Frankfort, Kentucky. Branzburg “spent two weeks interviewing several dozen drug users in the capital city,” and had seen some of them smoking marijuana. A number of conversations with and observations of several unnamed drug users were recounted (408 U.S. 665 [1972]).
In both instances, Branzburg was subpoenaed to appear and testify in the grand jury.
In the first case, he was asked “to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana” while in the second case he was required “to testify in the matter of violation of statutes concerning use and sale of drugs.”
In the same Branzburg case, In Re Pappas and United States v. Caldwell were reviewed as consolidated cases.
In Re Pappas involved petitioner Pappas, a television newsman-photographer who was called to New Bedford on July 30, 1970 to report on civil disorders involving fires and other turmoil (408 U.S. 665 [1972]).
He intended to cover a Black Panther news conference at that group’s headquarters in a boarded-up store.
As a condition of entry, Pappas agreed not to disclose anything he saw or heard inside the store except for an anticipated police raid, which Pappas, “on his own,” was free to photograph and report as he wished (408 U.S. 665 [1972]).
There was no police raid, so the petitioner wrote no story and did not reveal what had occurred in the store while he was there.
Two months later, the petitioner [Pappas] was summoned before the Bristol County Grand Jury and appeared, “but refused to answer any questions about what had taken place inside headquarters while he was there…” (408 U.S. 665 [1972]).
In Caldwell, the subpoenas were issued by a federal grand jury in the Northern District of California to respondent Earl Caldwell, a reporter for the New York Times.
He was ordered to testify and to bring with him notes and tape recordings of interviews he had with the officers and spokesmen of the Black Panther Party (408 U.S. 665 [1972]).
Respondent Caldwell objected to the scope of this subpoena. A second subpoena omitted the documentary requirement and simply ordered Caldwell “to appear . . . to testify before the Grand Jury.”
Caldwell and his employer, the New York Times, moved to quash on the ground that the unlimited breadth of the subpoenas and the fact that Caldwell would have to appear in secret before the grand jury…” (408 U.S. 665 [1972]).
Caldwell’s motion to quash was denied. Due to the refusal to testify, he was ordered committed for contempt until the time he complies with the court’s order.
Respondent Caldwell appealed the contempt order, and the Court of Appeals reversed and declared that: “[A]bsent compelling reasons for requiring his testimony, he was held privileged to withhold it.” (408 U.S. 665 [1972])
The US Supreme Court affirmed the District Court decisions in the two Branzburg cases, saying that the “… petitioner refused to answer question[s] that directly related to criminal conduct that he had observed and written about … [and] saw the commission of the statutory felonies of unlawful possession of marijuana and the unlawful conversion of it into hashish”.
Furthermore, the “[p]etitioner may be presumed to have observed similar violations of the state narcotics laws during the research [which] he did for the story that forms the basis of the subpoena. In both cases, “if what petitioner wrote was true, he had… to provide the grand jury [information] concerning the commission of serious crimes”.
In Pappas, the decision of the Massachusetts Supreme Judicial Court was affirmed.
“The petitioner must appear before the grand jury to answer the questions put to him, subject… to the supervision of the presiding judge as to ‘the propriety, purposes, and scope of the grand jury inquiry and the pertinence of the probable testimony’.”
The Caldwell case was reversed.
“If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury…”
Decades later, in the In Re: Grand Jury Subpoena, Judith Miller, a controversy arose from a sixteen-word sentence in the State of the Union Address of President W. Bush on January 28, 2003. President Bush stated that: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa” (438 F.3d 1141 [2006]).
On July 6, 2003, the New York Times published an op-ed (opposite the editorial) piece by former Ambassador Joseph Wilson, in which he claimed to have been sent to Niger by the Central Intelligence Agency in 2002 in response to inquiries from [then] Vice President Cheney to investigate whether Iraq had been seeking to purchase uranium from Niger (438 F.3d 1141 [2006]).
Wilson claimed that he had conducted the investigation and that there was no credible evidence that any such effort had been made.
The Chicago Sun-Times published a column through Robert Novak who asserted that … “two senior administration officials” told him that Wilson’s selection was at the suggestion of Wilson’s wife, Valerie Plame, whom Novak described as a CIA “operative on weapons of mass destruction” (438 F.3d 1141 [2006]).
Related articles were also released in TIME.com, Time Magazine, and The Washington Post.
The US Department of Justice undertook an investigation into whether employees of government had violated federal law by the unauthorized disclosure of the identity of a CIA agent (438 F.3d 1141 [2006]).
As a consequence, the grand jury issued a subpoena to the publishers, authors of the articles and Judith Miller for “conversations between her and a specified government official” occurring from on or about July 6, 2003, to on or about July 13, 2003… concerning Valerie Plame Wilson… or concerning Iraqi efforts to obtain uranium” (438 F.3d 1141 [2006]).
All of those subpoenaed refused to testify on the details related to their sources of information and were held in contempt.
The District Judge held that “a reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment (free speech and press) protection…” (438 F.3d 1141 [2006]).
In rejecting the claim of journalistic privilege, the Supreme Court said “[T]hat grand juries and the court operate under the longstanding principle ‘the public has a right to every man’s evidence,’ except for those persons protected by constitutional, common law, or statutory privilege” (438 F.3d 1141 [2006]).
The Court could not “seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source… [based] on the theory that it is better to write about a crime than to do something about it…” (438 F.3d 1141 [2006]).