Posted on 08/05/2017 10:44:54 AM PDT by street_lawyer
Branzburg v. Hayes In the Matter of Paul Pappas, Petitioner. United States, Petitioner, v. Earl Caldwell. — 85, 70 8212 94, 70 8212 57, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) is one of the leading cases on this issue.
Fact Summary. Branzburg one of the Petitioners observed the making of hashish from marijuana and was later called before a grand jury to implicate the persons involved. He refused to participate in the grand juries claiming a newman’s privilege.
Issue. This case considers whether reporters are to be held to the same standards as other citizens.
Held. The Supreme Court of the United States (Supreme Court) held that reporters are subject to grand jury investigations, but in limited circumstances can quash evidence and/or refuse to cooperate under their First Amendment freedom of the press, when their own safety or the identity of an informant would be compromised.
Dissent. Justice Douglas: Even while dissenting Justice Douglas affirms that there is no privilege to refuse to testify where the reporter is complicit in a crime. “It is my view that these [sic] is no 'compelling need' that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime. (emphasis added)
Excerpts from the decision:
There is no “newsman’s privilege” as it has been conceived. Reporters are subject to the same civic duties as are other citizens. The First Amendment freedom of the press does not protect a reporter who has participated in illegal activity.
It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Zemel v. Rusk, 381 U.S. 1, 16—17, 85 S.Ct. 1271, 1280—1281, 14 L.Ed.2d 179 (1965); New York Times Co. v. United States, 403 U.S. 713, 728 730, 91 S.Ct. 2140, 2148—2149, 29 L.Ed.2d 822 (1971), (Stewart, J., concurring); Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (CA3 1958); In the Matter of United Press Assns. v. Valente, 308 N.Y. 71, 77, 123 N.E.2d 777, 778 (1954).
'(T)he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.' Id., at 361, 86 S.Ct., at 1521. See also Estes v. Texas, 381 U.S. 532, 539 540, 85 S.Ct. 1628, 1631—1632, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417 1419, 10 L.Ed.2d 663 (1963).
“Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immune, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. To assert the contrary proposition to assert the contrary proposition
'Is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. . . . It suffices to say that however complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrong-doing.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 419—420, 38 S.Ct. 560, 564, 62 L.Ed. 1186 (1918).30
“'Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be (guilty of misprision).' 18 U.S.C. § 4”
Conclusion:
In the case of leaked information, it violates a federal statute. Knowledge of a crime compels the reporter to report it. Protecting the identity of a thief is not the case of a reporter protecting a 3rd party who has knowledge of crime.
While not reporting the crime, publication of that information arguably is a crime in that the reporter might be considered to be an accessory after the fact. [i.e. Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory after the fact to such felony.]
The court wrote: “It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.”
It would appear that the DOA has grounds to compel reporters to disclose the names of the leakers.
bump for later comments
Sort of like receiving stolen goods. You report it, else you are a thief too.
It would seem to me that being present at the time the crime was committed is a key to this case. The reporter observed the commission of a criminal act. If, on the other hand, one of the participants who had observed the making of hashish from marijuana were to call a reporter after the fact to expose the crime, the reporter would have a First Amendment claim if he published the information.
The MSM will fight and claim Freedom Of Leak
If the leaks contained classified data, info or names of people, who could be in danger if identified, yes.
If the leaks are basically political data released, that is how the world has operated for centuries. Bring it out for discussion.
“He refused to participate in the grand juries claiming a newman’s privilege.”
What’s a newman’s privilege?
An honest question;
Are these media outlets “paying” money or compensating these felonious leakers?
I’m betting that they are.
IMHO, these Deep State reprobates are seeking more than some anonymous credit and have found a profitable motive that out weighs their risk.
Of course not. They can go to jail.
media which publish confidential or classified information are violating the law regardless of who gave it to them. the first amendment is not absolute like we can;’t yell fire and cause riot if there’s no fire. So put the editors and the reporters and publishers in jail and the leaks will dry up.
Also why isn’t the information l more limited making it easier to find out who leaked it. Build a federal prison and call it The Leaky Hilton.
There are leaks that threaten national security and there are leaked that threaten the job security of an elected official.
If the leaks threaten the job security of an elected official, we need many more leaks.
They’ve basically got diplomatic immunity, so like diplomats, they should be subject to expulsion to another country...not any connected by U.S. borders, and not allowed to ever return to this country unless they agree to reveal the sources of their illegally obtained info. They’re receiving, and disseminating information that is harmful to this country’s safety, and security, and should be tried, and punished for the role they play in it.
The UK has recently revised its rather strict Secrecy Acts to protect whistle blowers in many situations. They have maintained the strict legislation for leaking certain critical issues re security of the UK>
House of Commons Library:
The UK’s recent revisions re Official Secrets protects whistle blowers re most situations.
The Official Secrets Acts and Official Secrecy
Published Tuesday, May 2, 2017
This House of Commons Library paper considers the main pieces of legislation in the UK related to official secrecy and the disclosure of information “in the public interest”. It focuses in particular on the main pieces of legislation - the Official Secrets Acts 1911-1989.
Other legislation relating to the disclosure of information includes the Public Records Acts, which provide a statutory right of access to government records after a twenty-year closure period. However, these Acts also allow for records to be retained “for administrative purposes or...for any other special reason”. Risk to national security is regarded as a special reason.
Members of the public can also make requests for information from Government departments under the Freedom of Information Act 2000. A Freedom of Information request must be complied with, unless one or more of the exemptions in the Act are relevant. Most exemptions are subject to a public interest test, but matters related to security bodies, e.g. the Security Service, have an absolute exemption.
Similarly, the Public Interest Disclosure Act 1998, which protects ‘whistleblowers’ who disclose information about malpractice at their workplace, also excludes disclosures relating to the security services.
Similarly, the Public Interest Disclosure Act 1998, which protects ‘whistleblowers’ who disclose information about malpractice at their workplace, also excludes disclosures relating to the security services.
The security services:
The security services themselves - that is, the Security Service (MI5); the Secret Intelligence Service (MI6) and the Government Communications Headquarters (GCHQ) - were placed under statutory control by the Security Service Act 1989 and the Intelligence and Security Act 1994.
Excerpted. For full text go to link below:
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7422#fullreport
The UK has recently revised its rather strict Secrecy Acts to protect whistle blowers in many situations. They have maintained the strict legislation for leaking certain critical issues re security of the UK>
House of Commons Library:
The UK’s recent revisions re Official Secrets protects whistle blowers re most situations.
The Official Secrets Acts and Official Secrecy
Published Tuesday, May 2, 2017
This House of Commons Library paper considers the main pieces of legislation in the UK related to official secrecy and the disclosure of information “in the public interest”. It focuses in particular on the main pieces of legislation - the Official Secrets Acts 1911-1989.
Other legislation relating to the disclosure of information includes the Public Records Acts, which provide a statutory right of access to government records after a twenty-year closure period. However, these Acts also allow for records to be retained “for administrative purposes or...for any other special reason”. Risk to national security is regarded as a special reason.
Members of the public can also make requests for information from Government departments under the Freedom of Information Act 2000. A Freedom of Information request must be complied with, unless one or more of the exemptions in the Act are relevant. Most exemptions are subject to a public interest test, but matters related to security bodies, e.g. the Security Service, have an absolute exemption.
Similarly, the Public Interest Disclosure Act 1998, which protects ‘whistleblowers’ who disclose information about malpractice at their workplace, also excludes disclosures relating to the security services.
Similarly, the Public Interest Disclosure Act 1998, which protects ‘whistleblowers’ who disclose information about malpractice at their workplace, also excludes disclosures relating to the security services.
The security services:
The security services themselves - that is, the Security Service (MI5); the Secret Intelligence Service (MI6) and the Government Communications Headquarters (GCHQ) - were placed under statutory control by the Security Service Act 1989 and the Intelligence and Security Act 1994.
Excerpted. For full text go to link below:
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7422#fullreport
Great article. Thanks for posting.
The despicable Judith Miller, disgraced former reporter for the NY Time (and current Fox News contributor), spent 85 days in jail for refusing to divulge sources of leaks she received from the CIA in the Plame affair (turns out Scooter Libby was her source), so holding the press accountable has been demonstrated in the past.
However, reporters almost all seem to agree that they can’t (or shouldn’t) be held accountable for reporting leaked classified information. Yesterday, even AG Sessions was lukewarm in saying that the media are not immune.
So, the question is why aren’t reporters from the NY Times, WaPo and other news outlets being held accountable? I presume it’s because the DOJ doesn’t want the media onslaught that would ensue should any of their brethren be charged with a crime.
Fencing.
Get on the stick Jeff!
Didn’t hold Obama back from going after James Rosen. No excuse for cowardice on the AG’s part.
Can media publish stolen nuclear launch code? And refuse revealing the name of the thief?
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