news gathering privilege



This privilege refers to the leeway and limitations reporters have in the process of gathering news.

The important issues include:

Reporters privilege.

Shield laws.

Gag orders.

Newsroom searches.


Reporter's Privilege

This becomes an issue when journalists refuse to give information in defiance of a court order or subpoena. They might face contempt charges for this.

In Branzburg v. Haynes (1972), the Supreme Court ruled that journalists have to comply with grand jury subpoenas if the government shows:

  1. Probable cause that the journalist is withholding information regarding a violation of the law.
  2. There is no other constitutional means to obtain the information.
  3. There is compelling interest in the information.


Shield Laws

Shield laws protect journalists from facing court action in the process of gathering news.

There are no congressional shield laws as of publication, but most states have passed shield laws.

The types of shield laws include:

  1. Absolute privilege laws that exempt journalists from ever revealing a source during a government inquiry.
  2. Laws that apply the privilege only if the information is published or broadcast.
  3. Qualified privilege allows several exemptions but are subject to judicial overrule.


Gag Orders

Gag orders prevent lawyers and trial participants from discussing a case publicly, such as on TV or to news outlets.

This is necessary in order to prevent the pollution of jury pools and to avoid the damnation of defendants through the court of public opinion.

The Supreme Court has ruled that gag orders directed at the media are unconstitutional unless:

  1. Pretrial publicity would be perverse.
  2. There are no alternative methods to prevent publicity.
  3. The gag order would effectively prevent pretrial influence.


Newsroom Searches

The Supreme Court has ruled that newsrooms do not have a constitutional protection from searches.

Several states have passed laws shielding newsrooms from such searches.

The Privacy Protection Act (1980) limits such searches nationwide to certain situations:

  1. When the person withholding the information is a suspect.
  2. If the material, when seized, would prevent someone's death or serious injury.
  3. If a subpoena would lead to the destruction or hiding of crucial material.
  4. If the media agency fails to produce the material after a failed appeal.


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