Chapter 11 Confidentiality
True/False Questions
1) The First Amendment explicitly says that journalists have a constitutional right to withhold the names of confidential sources.
Answer: False
Rationale:
The First Amendment does not explicitly state that journalists have a right to withhold the names of confidential sources. This concept is based on interpretations of the First Amendment by courts and legislatures.
2) The Supreme Court has recognized in the First Amendment an "implied" right for journalists to withhold the names of confidential sources.
Answer: False
Rationale:
The Supreme Court has not explicitly recognized an "implied" right for journalists to withhold the names of confidential sources under the First Amendment. Rather, protections for journalist-source confidentiality have been developed through interpretations of the Constitution by lower courts and state laws.
3) About 30 states have statutes allowing journalists to withhold the names of confidential sources.
Answer: True
Rationale:
This statement is true. Approximately 30 states have enacted shield laws or other statutes that provide some level of protection for journalists to withhold the names of confidential sources in legal proceedings.
4) Either courts or legislatures in practically all states recognize a privilege for journalists to withhold the names of confidential sources and notes.
Answer: True
Rationale:
This statement is true. In most states, either through court decisions or legislative action, there is recognition of a privilege for journalists to withhold the names of confidential sources and notes, although the scope of this privilege may vary.
5) The Supreme Court has never recognized a First Amendment right for journalists to withhold the names of confidential sources.
Answer: True
Rationale:
This statement is true. The Supreme Court has not explicitly recognized a First Amendment right for journalists to withhold the names of confidential sources. However, some justices have expressed views in concurring or dissenting opinions that suggest such a right could exist.
6) Courts and legislatures sometimes require that journalists promise confidentiality to sources if journalists wish to claim a privilege to withhold the names of sources.
Answer: True
Rationale:
This statement is true. In some jurisdictions, courts and legislatures may require journalists to demonstrate that they promised confidentiality to their sources in order to claim a privilege to withhold the names of those sources.
7) A judge held then-New York Times reporter Judith Miller in civil contempt of court and sent her to jail to coerce her testimony in the case of Valerie Plame, a CIA operative whose name was leaked to the press.
Answer: True
Rationale:
This statement is true. Judith Miller was indeed held in civil contempt of court and was sent to jail for refusing to testify about her confidential sources in the case involving the leak of Valerie Plame's identity.
8) Former New York Times reporter Judith Miller was released from prison when the Supreme Court overturned lower court rulings that misinterpreted Branzburg v. Hayes.
Answer: False
Rationale:
This statement is false. Judith Miller was not released from prison due to any Supreme Court action. She ultimately agreed to testify before a grand jury investigating the leak, and she was released from prison after serving 85 days.
9) Some lower court judges have interpreted Justice Powell's concurring opinion in Branzburg v. Hayes as support for the dissenters' view that journalists should have a constitutional right to withhold confidential sources.
Answer: True
Rationale:
This statement is true. Some lower court judges have indeed interpreted Justice Powell's concurring opinion in Branzburg v. Hayes as supporting the dissenters' view that journalists should have a constitutional right to withhold confidential sources.
10) Prosecutors are more likely to have a "compelling" need for a journalist's information in a criminal case when a defendant's life or freedom may be at stake than in a civil case.
Answer: True
Rationale:
This statement is true. Prosecutors may have a stronger argument for a "compelling" need for a journalist's information in a criminal case where significant liberty interests are at stake, such as when a defendant's life or freedom is on the line, compared to a civil case where the stakes may be lower.
11) A federal shield law allows "anyone who disseminates information to the public" to shield confidential sources from courts and grand juries.
Answer: False
Rationale:
This statement is false. A federal shield law, if enacted, would likely apply specifically to journalists or members of the press rather than "anyone who disseminates information to the public."
12) Congress failed to adopt a federal shield law that would permit anyone who disseminates information to the public to withhold confidential information from courts and grand juries.
Answer: True
Rationale:
This statement is true. Despite efforts, Congress has failed to pass a federal shield law that would provide broad protection for journalists or others who disseminate information to the public to withhold confidential information from courts and grand juries.
13) Recognizing new media, Congress considered adopting a shield law permitting anyone who disseminates information to the public to claim a privilege to withhold confidential sources.
Answer: True
Rationale:
This statement is true. In response to the evolving landscape of media, Congress has considered adopting a shield law that would extend protections to a broader range of individuals involved in disseminating information to the public, including those in new media roles.
14) Although Justice Stewart dissented in Branzburg v. Hayes, his opinion has been widely incorporated into state shield laws.
Answer: True
Rationale:
This statement is true. Justice Stewart's dissent in Branzburg v. Hayes, which advocated for a limited privilege for journalists to withhold confidential sources, has influenced the development of state shield laws, many of which provide protections consistent with his reasoning.
15) Even in states with shield laws, journalists sometimes must reveal confidential sources.
Answer: True
Rationale:
This statement is true. Despite the presence of shield laws in many states, journalists may still be compelled to reveal confidential sources under certain circumstances, such as when a court determines that the public interest in disclosure outweighs the journalist's privilege.
16) Since 9/11, the number of subpoenas requiring journalists to reveal sources has increased.
Answer: True
Rationale:
This statement is true. Following the events of 9/11, there has been an increase in subpoenas requiring journalists to reveal their sources, as law enforcement and government agencies have sought information related to national security concerns and other matters.
17) Prosecutors sometimes seek journalists' sources and notes when the information could be easily acquired from other sources.
Answer: True
Rationale:
This statement is true. Prosecutors may seek journalists' sources and notes even when the information could be obtained from other sources because journalists' testimony or evidence may provide additional context or credibility to the information.
18) Journalists fear the public may be denied valuable reports because sources may "dry up" if journalists cannot promise confidentiality.
Answer: True
Rationale:
This statement is true. Journalists often rely on the promise of confidentiality to encourage sources to come forward with valuable information. If sources fear exposure, they may be less likely to provide information, potentially depriving the public of important news reports.
19) Confidential sources promised confidentiality may sue for breach of contract if they are hurt by a journalist's disclosure of their identity.
Answer: True
Rationale:
This statement is true. Confidential sources who were promised confidentiality by journalists may have legal recourse to sue for breach of contract if their identity is disclosed and they suffer harm as a result.
20) Journalists who promise confidentiality to sources usually lose the privilege if they write a profitable book using confidential information.
Answer: False
Rationale:
This statement is false. Whether journalists lose the privilege to withhold confidential sources typically depends on the specific circumstances and legal considerations involved. Writing a profitable book using confidential information alone may not necessarily result in the loss of the privilege.
21) Journalists sometimes lose a statutory privilege to withhold confidential sources if the journalists observe—are witnesses to—criminal activity.
Answer: True
Rationale:
This statement is true. In some jurisdictions, journalists may lose their statutory privilege to withhold confidential sources if they directly witness or are otherwise involved in criminal activity related to the information they obtained.
Multiple Choice Questions
1) In some states, journalists may withhold sources unless the courts or law enforcement officials demonstrate three things, including
A) a compelling need for the information.
B) the relevance of the information to the case.
C) an implication of the journalist in criminal wrongdoing.
D) All of the above.
E) A and B
Answer: E
Rationale:
Option E is correct because in some states, journalists may be able to withhold sources unless the courts or law enforcement officials demonstrate a compelling need for the information and the relevance of the information to the case. The implication of the journalist in criminal wrongdoing is not typically a requirement for disclosure.
2) Justice White, who wrote the opinion for the Court in Branzburg v. Hayes, and Justice Stewart, who dissented, disagreed because
A) Justice White did not believe that sources would dry up if journalists had no right to promise confidentiality, but Justice Stewart thought sources would dry up.
B) Justice White saw the press as strong and hearty while Justice Stewart viewed the press as more vulnerable.
C) Justice White thought it would be difficult to define who would get a privilege of confidentiality if one were created, but Justice Stewart disagreed.
D) All of the above.
E) None of the above.
Answer: D
Rationale:
Option D is correct because Justice White and Justice Stewart disagreed on various aspects, including the impact on journalistic sources, the nature of the press, and the practicalities of defining and implementing a privilege of confidentiality.
3) In Branzburg v. Hayes, the Supreme Court
A) did NOT establish a privilege permitting journalists to refuse to testify before a grand jury.
B) supported an absolute privilege for journalists to withhold names.
C) supported a qualified privilege for journalists to withhold names but not documentary sources.
D) None of the above.
E) All of the above.
Answer: A
Rationale:
Option A is correct because in Branzburg v. Hayes, the Supreme Court did not establish a privilege permitting journalists to refuse to testify before a grand jury. The Court held that journalists are subject to the same obligations to testify as other citizens.
4) Justice White, author of the Court's opinion in Branzburg v. Hayes, demonstrated
A) deference to the authority of duly authorized grand juries to carry out their tasks of gathering and weighing information.
B) a fundamental disagreement with Justice Stewart—the dissenter—over the ability of the press to report news if the names of sources must be disclosed to grand jurors.
C) a dislike for journalists and journalism.
D) None of the above.
E) A and B.
Answer: E
Rationale:
Options A and B are correct because Justice White demonstrated deference to grand juries and held a different viewpoint from Justice Stewart regarding the press's ability to report news when compelled to disclose sources.
5) Legislators creating shield laws often have difficulty defining the journalists and information workers who should have the privilege to withhold names of confidential sources. Shield laws usually extend the privilege of confidentiality
A) to anyone who disseminates information to the public.
B) only to journalists employed more than half-time at a newspaper.
C) to reporters and editors for established news organizations or media.
D) None of the above definitions resemble how journalists are defined in shield laws.
E) All of the above definitions are used about equally.
Answer: C
Rationale:
Option C is correct because shield laws typically extend the privilege of confidentiality to reporters and editors working for established news organizations or media, reflecting a common understanding of who qualifies as a journalist for the purposes of such laws.
6) To overcome a journalist's qualified privilege to withhold notes or the names of sources, the government usually has to show:
A) The information sought is clearly relevant to a criminal investigation.
B) There are no other sources for the information.
C) There is a compelling need for the information.
D) All of the above.
E) A and B.
Answer: D
Rationale:
Option D is correct because to overcome a journalist's qualified privilege, the government typically has to demonstrate that the information sought is relevant to a criminal investigation, there are no other sources available, and there is a compelling need for the information.
7) Even if journalists have a qualified privilege to withhold information under a shield law, journalists are likely to be required to provide confidential information when
A) a grand jury demands the information.
B) a defendant facing serious criminal charges seeks the information.
C) a lawyer in any case seeks helpful information from a journalist.
D) all of the above about equally.
E) A and B
Answer: E
Rationale:
Option E is correct because even with a qualified privilege, journalists may still be required to provide confidential information when demanded by a grand jury or when sought by a defendant facing serious criminal charges.
8) Journalists welcome neither subpoenas nor search warrants, but they prefer subpoenas for information because
A) subpoenas can be more easily challenged legally.
B) there is time to prepare a response to a subpoena.
C) searches are more intrusive.
D) All of the above
E) A and B
Answer: D
Rationale:
Option D is correct because journalists generally prefer subpoenas for information over search warrants due to the ability to challenge subpoenas more easily and the opportunity to prepare a response.
9) Zurcher v. The Stanford Daily established that
A) officials with a search warrant can search a newsroom.
B) officials with a warrant can search the offices of citizens not suspected of a crime.
C) the First Amendment provides no protection from searches conducted with a valid search warrant.
D) All of the above.
E) A and B.
Answer: D
Rationale:
Option D is correct because Zurcher v. The Stanford Daily established that officials with a valid search warrant can search a newsroom and the offices of citizens not suspected of a crime, and the First Amendment does not provide protection from searches conducted with a valid search warrant.
10) A journalist who claims a constitutional right NOT to reveal sources to a grand jury has:
A) A full first amendment privilege, as held by the Supreme Court in Branzburg v. Hayes.
B) A qualified First Amendment privilege, as held by the Supreme Court in Branzburg v Hayes.
C) No constitutional privilege, as held by the Supreme Court in Branzburg v. Hayes.
D) No constitutional privilege, but a federal statutory privilege, as created in the Federal Journalists Protection Act of 2006.
E) None of the above.
Answer: C
Rationale:
Option C is correct because the Supreme Court in Branzburg v. Hayes held that journalists do not have a constitutional privilege to withhold sources from a grand jury.
Essay Questions
1) Ron Reporter writes a series of stories about university officials selling illegal drugs to dorm residents. Reporter does not observe any drug sales. On the basis of the articles, the district attorney charges the director of student housing with drug trafficking. As she begins preparation for trial, the district attorney asks the judge to order Reporter to reveal the names of sources and notes acquired for the articles. The district attorney (DA) tells the judge the names and sources "might help her a lot" as she tries to clear the campus of the scourge of drugs. Reporter refuses to reveal his sources and notes, citing the state shield law which is much like the three-part shield Justice Stewart proposed in Branzburg v. Hayes. From the facts available, should Reporter be able to withhold notes and sources under the state shield law? Yes or no? Explain
Answer: Yes, Reporter should be able to retain his sources under the state shield law.
The DA has not sought the names and sources from any sources other than Reporter as she would be required to under the Stewart qualified privilege. The DA's office should seek names and information through its own investigation. Also, the DA has not demonstrated a compelling need for the information as the Stewart test would require. The DA has sought the information because it "might help her a lot," a vague statement of need. However, the judge might decide, as many judges have, that a DA has a compelling need for information if the information is relevant to a serious crime, such as drug dealing.
The DA probably does meet the third part of the Stewart test; she will be able to establish that Reporter possesses evidence relevant to the criminal case, that is names and information of campus criminals.
2) The campus Paper publishes a three-part series, written by Ron Reporter, about the sale on campus of illegal CDs imported from factories in Southeast Asia. The stories report that illegal sales are part of a national market in illicit sale of cheap, but high quality CDs. Ron Reporter (RR) promised confidentiality to his unnamed sources. He wrote a number of notes, drafts and opinions in the course of preparing his series.
Paula Prosecutor (PP), a federal district attorney, is contemplating running for governor. She has always portrayed herself as "Tough on Crime." She concludes that fighting illegal CD sales on campus will serve the public interest as well as serve her political ambitions. She decides to get RR's unpublished notes, story drafts and opinions to help her prosecute the illegal sellers and buyers. At first she considers getting a subpoena, demanding RR to turn over the notes and drafts. Then PP realizes she might get more favorable publicity in her fight against crime and her run for the governor's mansion if she "raids" the newsroom. Besides, she rationalizes, if she tries to get the notes and drafts through a subpoena, those "kids" at the Paper "will probably destroy the notes because they are probably friends of the sellers and buyers." She concludes that her efforts to stop illegal CD sales will even help reduce the U.S. trade deficit by reducing illegal imports. PP gets a search warrant from her friend Judge Pliable.
When PP shows up at the Paper to conduct the search, Edward Editor (EE) protests that PP is about to conduct an illegal search. EE proclaims, first, that the First Amendment prohibits newsroom searches and, second, that a law enforcement official violates the Privacy Protection Act of 1980 by searching for journalists' "work product materials" in a newsroom without adequate justification. The search proceeds.
1. Did PP violate the First Amendment when she conducted the search of a newsroom where journalists were not themselves criminal suspects?
2. Did PP violate the Privacy Protection Act?
Answer: 1. PP did not violate the First Amendment. The Supreme Court ruled in Zurcher v. Stanford Daily that the First Amendment does not prohibit newsroom searches when officials have a search warrant. It does not matter that the journalists are not criminal suspects. Search warrants are valid if investigators seek evidence of crime possessed by people who are or are not suspects themselves.
2. PP has violated the Privacy Protection Act. The Act says that federal or state officials should be allowed to search newsrooms for work product materials only when there is probable cause to believe a reporter has committed a crime, evidence might help save a life or prevent injury, or there is reason to believe materials contain information valuable to national security or the prevention of espionage. Work product materials include notes, drafts and opinions.
There is no evidence that EE or the Paper committed a crime. Merely conjecturing that students might destroy evidence about fellow students is not evidence of crime.
There is no evidence that the search would produce information necessary to save a life or prevent injury or that the information related to national defense, national security or terrorism.
Short Answer and Key Terms
1) Stewart's Dissent
The seminal case in the debate over a journalist's privilege is Branzburg v. Hayes decided in 1972. While the majority of the Court ruled that journalists must testify before grand juries, Justice Stewart's dissenting opinion has had considerable influence on later law. Briefly explain Stewart's opinion and its impact.
Answer: Justice Stewart argued that journalists should have a qualified First Amendment privilege to withhold confidential information. He argued journalists should be excused from testifying before a grand jury unless the government could establish a compelling need for relevant information that could be acquired from no other source. Stewart's argument for a qualified First Amendment privilege for journalists has been adopted in various formulations by several federal and state courts and by state legislatures.
2) First vs. Sixth
State the constitutional "conflict" embodied in Branzburg v. Hayes, and briefly outline how Justice Stewart proposed to reconcile the conflicting constitutional commands.
Answer: The First Amendment protects freedom of the press, which includesπmany would argueπa right of journalists to promise confidentiality to sources. But the Sixth Amendment guarantees each citizen a fair trial, which includes the right of the accused to have testimony compelled on their behalf. Stewart proposed a "qualified" privilege under which journalists would have to testify or provide notes if a grand jury demonstrated a compelling need for relevant information held by a journalist and there were no alternative sources.
3) Search Warrants
Officials can lawfully seek evidence in criminal cases from journalists by subpoenaing information or by executing a search warrant. Journalists oppose both. Why do journalists usually oppose searches more vigorously than subpoenas?
Answer: Journalists especially oppose newsroom searches because they are disruptive, occur unannouncedπallowing journalists no opportunity to oppose them in courtπand can permit authorities to look for information beyond that specified in a search warrant. Journalists also resent newsroom searches when the journalists are not implicated in any crime or suspected of destroying evidence. Newsroom searches are outlawed in most instances by the Privacy Protection Act of 1980.
4) Defining Journalists
Briefly explain the constitutional argument against including bloggers in the definition of "journalists" allowed to protect confidential sources under a proposed federal shield law.
Answer: Some argue that including bloggers in a shield law will so broaden the definition of journalists that virtually anyone can claim the privilege to withhold confidential sources. If everyone has a privilege, criminal defendants might have considerably more difficulty compelling testimony to which they are entitled under the Sixth Amendment. In addition, "sham" journalists and criminals could claim the bloggers' privilege to shield their activities from law enforcement.
5) Cohen v. Cowles Media Company What's the significance of Cohen?
Answer: Journalists who breach a promise of confidentiality may be sued by sources harmed by the revelation of their identities. The press has no First Amendment right to violate generally applicable laws, such as the requirement to honor freely entered commitments.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
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