The LDRC Institute Publishes

Media Law Resource Center White Paper on Reporter’s Privilege

At a significant moment for the reporter’s privilege, the LDRC Institute is publishing the Media Law Resource Center White Paper on Reporter’s Privilege, a series of articles designed to assess the history of the reporter’s privilege, put it in context with other privileges recognized by the courts in the United States, and report the arguments and empirical rationales in support of a strong privilege. As the MLRC White Paper outlines, while the privilege is under stress, there is great support for it in history, the common law, and the Constitution.

The reporter’s privilege – which enables reporters to decline to divulge confidential sources and other unpublished information in judicial and other governmental proceedings – is one of the great tools of journalists in the United States and around the world. Recognized by the courts and legislatures here and abroad, it has benefitted the public interest by affording journalists broad access to ideas and facts that might otherwise remain hidden and secret from the press and public.

As the MLRC White Paper went to press, an order of contempt and imposition of sanctions was issued by the by a judge in the D.C. District Court against five reporters from the Associated Press and various national publications and networks because of their refusal to identify their confidential sources in connection with the suit by Dr. Wen Ho Lee against the United States Department of Justice. Also as the MLRC White Paper went to press, TIME Inc. and its reporter, Matthew Cooper, were subject to an order of contempt and imposition of sanctions in the District Court for the District of Columbia based upon their refusal to identify Mr. Cooper’s sources to a grand jury investigating the leak by government officials to the press of the identify of CIA official Valerie Plame. That matter was resolved and the contempt citation lifted when the source self-identified.

"The fact that a finding of contempt and sanctions against the reporters in the Plame investigation and Dr. Wen Ho Lee’s lawsuit are considered newsworthy attests to the stature and acceptance of a privilege for journalists," said Sandra S. Baron, executive director of the Media Law Resource Center. "But it is also a warning that the principles that support the privilege in the courts must never be taken for granted. Those principles, and the fundamental reasons for the privilege, need to be articulated, evaluated, re-evaluated and refreshed regularly."

MLRC White Paper on Reporter’s Privilege is just such a survey. Among its findings:

The White Paper demonstrates that the need for the privilege has strong empirical support. It has ties to other privileges in American law and clearly meets the courts’ tests for common law evidentiary privileges, while it is consistent with developing international norms. Its statutory history in the states goes back to the 19^th century and has taken root in a majority of states. And its claim to Constitutional status is supported by recent Supreme Court First Amendment decisions. The MLRC White Paper is designed as a resource for anyone interested in the reporter’s privilege and its important role in American journalism. The articles and authors are:

• Introduction, Sandra Baron
• The Road Less Taken: The Path to Recognition of a Qualified Reporter’s Privilege Through the Law of Evidentiary Privileges, Kelli L. Sager, Carolyn Killeen Foley, Andrew M. Mar, John D. Kostrey, and Trinh C. Tran
• From John Peter Zenger to Paul Branzburg: The Early Development of Journalist’s Privilege, Charles D. Tobin
• The Constitutional Privilege after Branzburg: An Historical Overview, Len Neihoff
• Reporter’s Privilege: Legislative and Regulatory Developments, Robert D. Lystad and Malena F. Barzilai
• The Empirical Case: Proving the Need for the Privilege, Steven D. Zansberg
• Protection of Journalists’ Sources Under Foreign and International Law, Floyd Abrams and Peter Hawkes
• Rethinking the Reporter’s Privilege for the 21st Century, Paul Smith and Lee Levine

The Media Law Resource Center is a non-profit information clearinghouse organized in 1980 by leading media groups to monitor developments and promote First Amendment rights in the libel, privacy and related fields. MLRC has systematically monitored trends in media law since 1980, and its empirical data have been widely cited and reported in the media, in scholarly publications and in judicial opinions. MLRC’s members include leading publishers and broadcasters, media and professional trade associations representing newspaper, magazine, newsletter and book publishers, broadcasters, journalists, authors, news directors and newspaper editors, and also media insurance carriers. MLRC’s law firm wing, the MLRC Defense Counsel Section, consists of approximately 200 member firms around the country and abroad with specialities in media and libel defense representation.

The LDRC Institute is a 501(c) (3) corporation created in 1988 to sponsor and support First Amendment education and research projects. It was created by the Libel Defense Resource Center, now known as the Media Law Resource Center (the "MLRC").

The LDRC Institute’s development and distribution of the MLRC White Paper on Reporter’s Privilege was made possible with support from a grant from the McCormick Tribune Foundation. The McCormick Tribune Foundation is one of the nation's largest charitable organizations, with current combined assets of close to $2 billion. In 2003 it gave more than $82 million in the form of grants designed to invest in communities, address human needs and promote the ideals of a democratic society through innovative partnerships.

The Foundation provides assistance in four program areas: communities, education, journalism and citizenship. It also has a special initiatives program. Through its grants, the foundation seeks to improve the social and economic environment; encourage a free and responsible discussion of issues affecting the nation; enhance the effectiveness of American education; and stimulate responsible citizenship.

# # #