A federal judge in Boston today ruled that Boston Globe reporter Donovan Slack will not be forced to give testimony in a civil rights lawsuit filed by a former Faneuil Hall street performer against the city of Boston. U.S. District Judge Beryl A. Howell ruled that a qualified reporters' privilege under the First Amendment protected Slack from being forced to testify.
"Courts have recognized a qualified privilege under the First Amendment for reporters to protect them from compelled disclosure of information, which they have obtained as part of their news gathering role," Judge Howell wrote. "The reporter's privilege stems from recognition of the 'preferred position of the First Amendment' in our society and 'the importance of a vigorous press.'"
Slack wrote a story for the Globe in 2008 about restrictions imposed by the city of Boston on street performers at Faneuil Hall. Bruce Peck sought to compel Slack to testify in his lawsuit claiming that the city's restrictions violated his First Amendment rights of free speech. When Peck subpoenaed Slack, she asked the federal court to quash the subpoena.
While the reporter's privilege is often raised in cases involving confidential information, Judge Howell wrote that it is also recognized in cases -- such as this one -- involving nonconfidential information. "If a reporter's privilege did not apply to nonconfidential information, it would result 'in a wholesale exposure of press files to litigant scrutiny [and] would burden the press with heavy costs of subpoena compliance.'"
The First Circuit (which includes Boston) applies a two-prong balancing test to determine whether the reporter's privilege applies, Judge Howell said. First, the court must evaluate the litigant's need for the information, considering not merely whether the information is relevant, but whether it is important to the litigant's case. Second, the court must consider whether the party seeking the information has exhausted all reasonably available alternative sources.
Peck, the plaintiff in this case, sought Slack's testimony in order to confirm the limited size of the area the city of Boston allowed for street performers. This piece of information was critical to the court's analysis of Peck's First Amendment claims, Judge Howell ruled, and thereby weighed in favor of compelling Slack's testimony.
However, turning to the second prong of the balancing test, Judge Howell concluded that Peck had failed to demonstrate that no alternate sources for the information existed. Peck offered only "general descriptions" of his efforts to obtain the information elsewhere, "and these descriptions are insufficient to sustain his burden of showing that alternative sources are unavailable."
"Without a proper showing that alternative sources do not exist, the Court will not override the reporter’s privilege and force Ms. Slack to testify in connection with the plaintiff’s case," Judge Howell concluded.
Judge Howell's 14-page opinion contains a thoughtful discussion of the reporter's privilege law and is well worth taking the time to read.
[Hat tip to Suits & Sentences for alerting me to the case.]
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This is an interesting case. There have been many cases that have dealt with shield laws over the years. It seems in civil cases such as this the reporters privilege is given to reporters but during criminal cases the reporter’s privilege does not always seem to be guaranteed. The In re Madden decision gave standards as to whether a person was a journalist, and standards as to what a person had to do to be a journalist. This decision, even though it ruled against the defendant, gave precedent that there was a reporter’s privilege not to release their sources.
This makes it seem cut and dry, but the Brandenburg v. Hayes decision previously held that a reporter did have to reveal sources in a criminal investigation. The reasoning behind this decision was that a regular person did not enjoy a privilege of withholding information from a government investigation, so there was no reason to believe that a journalist should be able to do so.
The Brandenburg v. Hayes decision was used in the 2004 case involving the outing of CIA operative Valery Plame. The court subpoenaed two reporters, who refused to answer the subpoenas because of their belief in the reporter’s privelage. The two reporters were found in contempt of court and were sentenced to 8 months in jail, one journalist being released only after his source allowed him to break their confidentiality agreement.
Carey v. Hume gave the precedent that requiring journalists to testify in court should be used as a last resort, only to be used when all other options had been exhausted.
In this case, the reporter did not have to give up their information because the plaintiff did not exhaust all of their other options before subpoenaing the journalist.
What if the person had exhausted their options?
The Judge may have had to require the journalist to come to court and testify, which would nullify the idea of a reporters privilege.
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