Reporter's Privilege


Confidential Sources

Case: Branzburg v. Hayes.

Case citation: Branzburg v. Hayes, 408 U.S. 665 (1972).


Paul Branzburg, a reporter for the "Courier-Journal" in Louisville, Ky. wrote two articles on hashish use in the area. In the course of his reporting, Branzburg witnessed two individuals preparing and using hashish. The stories had an accompanying photo and caption. Branzburg had promised the two subjects anonymity. When later summoned by a grand jury, Branzburg appeared but refused to name the hashish users. A trial judge rejected Branzburg's arguments that a Kentucky statute bestowed privilege against the disclosure of news sources. Branzburg petitioned the Kentucky Court of Appeals but was denied. On further appeal, the Supreme Court ruled that reporters did not have a lesser burden that other citizens when it comes to giving testimony on criminal activity.

Decision: Lower court decision affirmed. 

Test - Appropriation: 

Journalists have to answer subpoenas if the government can show:

  1. Probable cause that the journalist has information regarding a violation of the law
  2. There’s no other non-constitutional means to obtain the information
  3. There is a compelling interest connected to the information


Gag Orders

Case: Nebraska Press Association v. Stuart.

Case citation: Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).


Six family members of a small Nebraska town were murdered on Oct. 18, 1975. Soon after, the police released to the press, a description of a suspect, one Erwin Simant . Upon Simant's arrest, the story picked up national coverage prompting the county attorney and the defense lawyer to petition for a gag order on media coverage. Without any press representative, a county court issued a gag order on everyone attending the court proceedings. The press petitioned the gag order and the district court limited the scope of the gag and limited its stay up to when the Jury was impaneled. On further appeal, the Nebraska Supreme Court upheld the gag, however limiting its scope further. The Supreme Court weighed different issues from fair trial and biased jurors to prior restraint.

Decision: Reversed. 

Test - Gag orders and Pretrial Publicity: 

The Court outlined a guideline that trial judges should use when weighting a petition for a gag order:

  1. The extend and intensity of the publicity and its effect on the jury
  2. Availability of alternatives methods that negate the need for prior restraint on the media, e.g. trial postponement, change of venue and clear, emphatic instructions to the jurors
  3. The gag order if issued, should indeed work to protect the defendant's rights to a free and fair trial



Newsroom Searches

Case: Zurcher v. Stanford Daily.

Case citation: Zurcher v. Stanford Daily 436 U.S. 547 (1978).


This case resulted from an incident at the Stanford University Hospital when a group of protesters seized the administration offices and refused to vacate. The Palo Alto P.D. and the Santa Clara Sheriff's office responded, resulting into a clash at two hospital wings. Some police officers were attacked and injured in the hospital's east wing in the absence of police photographers. However, one officer claimed to have seen a photographer at the scene. 

After the Stanford student newspaper, the "Stanford Daily" published photos from the incident, the police acquired and executed a search warrant in the paper's offices. The newspaper staff sued for infringement of its First, Fourth, and Fifteenth Amendments rights. A district court ruled that the search was illegal since none of the staffers were suspects in the attacks. An appeals court affirmed the decision. In debating the rights of third-party searches, The U.S. Supreme Court rejected the reasons given by the lower courts that newspapers have privileged immunity from searches and ruled that law enforcement indeed can conduct a third-party search in order to recover evidence.

Decision: Reversed. 

Test - The Privacy Protection Act (1980)t: 

In response to the Court's decision, Congress passed this act in order to protect media establishments from search and seizure operations. It lays out exemptions when such searches are permitted:

  1. The person holding the material is a suspect in a crime related to the material in question.
  2. Immediate seizure of the material will prevent death or serious bodily injury.
  3. A prior notice (subpoena) will lead to the destruction or alteration of the material.
  4. A court order has failed to produce the material and further delays will impede justice.


Speech on Campus

Case: Hazelwood v. Kuhlmeier.

Case citation: Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).


Students in a journalism class at Hazelwood East High School in St. Louis County, Mo. routinely published "Spectrum," a tri-weekly paper that was subject to review by the principal. One edition focused on pregnant teens at the school and children whose parents were undergoing divorce. The principal, on the grounds of protecting the subjects' identity, objected to the stories, suggesting that the paper drop the stories. 

Some students sued for First Amendment violation but a district court ruled that none had occurred. On appeal, the 8th circuit appeals court reversed the decision, stating that indeed a violation of rights had occurred. The Hazelwood School District appealed to the Supreme Court. While ruling that the principal acted reasonably for asking for the deletion of the stories, the Court also ruled that a public school does not provide a traditional forum for expression.

Decision: Reversed. 

Test - Hazelwood: 

  1. Students in public (high) schools do not automatically enjoy such rights of expression as adults elsewhere.
  2. A school newspaper and other school facilities are not deemed as fora (venues) for public expression unless expressly stated so by the school.
  3. The administration can exercise editorial control over content for legitimate, school-related reasons.
  4. Although a footnote to the opinion specifically stated that the decision did not apply to college campuses, federal appeals court have lately applied the Hazelwood decision to universities.
  5. In response, some states have passed laws guaranteeing student newspapers full First Amendment rights.

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