newsgathering 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. Possession: Probable cause that the journalist is withholding or has information/documents regarding a violation of the law.
  2. Alternatives: There is no other constitutional means to obtain the information/documents.
  3. Relevance: There is compelling interest in the information/documents (regarding the situation at hand).  



Shield Laws

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

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

The types of shield laws include:

  1. Absolute privilege laws:
    • These laws exempt journalists from ever revealing a source during a government inquiry.
    • Most states still give the government the limited ability to invoke exemptions in cases of imminent danger, such as when the widthholding the information leads to the risk of death.
    • Some laws apply the privilege only if the information is first published or broadcast.
  2. Qualified privilege laws:
    • These laws allow the government to invoke certain exemptions but these exemptions 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 other news outlets.

This is necessary in order to prevent the contamination 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

In Zurcher v. Stanford Daily (1978), the Supreme Court ruled that newsrooms do not have a constitutional protection from searches.

The U.S. Congress passed the Privacy Protection Act (1980) to limit such searches (nationwide) to certain situations:

  1. When the person withholding the information is a suspect in an investigation.
  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.

Several states have also passed laws protecting newsrooms from searches.


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