The reporter’s privilege and South Dakota

Now that Judge Vince Foley has recognized a Republican blogger as a journalist in the “robocall” criminal trial , there’s plenty in the news and the blogosphere about South Dakota not having “shield laws.” Such laws protect journalists from unilaterally being required to divulge their confidential sources. While South Dakota has no such law, the South Dakota Supreme Court has recognized a reporter has a “qualified privilege” against revealing confidential sources in civil cases and a U.S. Supreme Court decision suggests the same exists in criminal cases.

As noted, Judge Foley’s ruling came in a criminal trial. Thus, while the South Dakota decision — a case of mine — is not directly applicable, it is worth considering the five factors trial courts must weigh in deciding if the privilege attaches in a particular case. First, the court must look to whether the reporter is a party to the case. If so, that weighs in favor of disclosure but it is not alone determinative. The second and third factors are the journalist’s biggest friends: the information sought “must go to the heart of the lawsuit” and the party seeking it “must exhaust all alternative methods of getting the information.” Then, in “matters of great public importance,” confidential informants should be protected if they “fear exposure and retaliation if they reveal criminal and unethical conduct to the public.” The last factor is a limited one, likely to apply only in defamation cases, such as the one I was handling. In it, the plaintiff must show the statement at issue is false. (FWIW, the Supreme Court with the trial court ruling that my client did not have to disclose her sources.)

Things are a bit grayer in the criminal context. In Branzburg v. Hayes, a 1972 decision, a majority of the U.S. Supreme Court said a reporter did not have a First Amendment right to refuse to obey a grand jury subpoena. But it appears that conclusion is limited to the specific facts of that case/ These include the fact this was a grand jury subpoena and grand juries are always confidential. Yet Justice Lewis F. Powell departed a bit from the other four in the majority, saying in a a concurring opinion saying the ruling was “limited.” He indicated any future asserted claim of privilege “should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

This is significant because Justice Potter Stewart issued a dissenting opinion in which he was joined by Justices William Brennan and Thurgood Marshall. They concluded that if a grand jury subpoena were issued to a journalist, “the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.” With Justice William O. Douglas dissenting completely from the majority opinion, most courts subsequently recognized that Branzburg essentially recognizes a qualified reporter’s privilege.

Given the lack of direct South Dakota law on subpoenas to journalists in criminal trials, Judge Foley is somewhat on his own in assessing what testimony will be permitted. It is significant, though, that he is going to hear the evidence outside the presence of the jury, evidently to decide whether and to what extent it should be admitted into evidence.

The fact there is law out there on a reporter’s privilege doesn’t mean the state shouldn’t consider adopting a shield law. After all, 40 states and the District of Columbia have shield laws, including states where, like South Dakota, a privilege has been recognized judicially. I’ll leave for others the debate on whether bloggers are “journalists” in this or other situations.

It is obvious that informants are necessary to the news-gathering process as we know it today. If it is to perform its constitutional mission, the press must do far more than merely print public statements or publish prepared handouts.

Justice Potter Stewart, Branzburg v. Hayes (dissenting)

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