Although these cases deal with reporters...
A couple of them might be helpful.
Does federal or state law apply to my case?
A majority of the subpoenas served on reporters arise in state cases, with only ten percent coming from federal cases, according to the 1995 version of the Reporters Committee's ongoing subpoena survey, Agents of Discovery.
State trial courts follow the interpretation of state constitutional, statutory or common law from the state's highest court to address the issue. When applying a First Amendment privilege, state courts may rely on the rulings of the United States Supreme Court as well as the state's highest court.
Subpoenas in cases brought in federal courts present more complicated questions. Each state has at least one federal court. When a federal district court is asked to quash a subpoena, it may apply federal law, the law of the state in which the federal court sits, or even the law of another state. For example, if a journalist from one state is subpoenaed to testify in a court in another state, the enforcing court will apply the state's "choice of law" rules to decide which law applies.
Federal precedent includes First Amendment or federal common law protection as interpreted by the United States Supreme Court, rulings of the federal circuit court of appeals for the district court's circuit, or earlier decisions by that same district court. There is no federal shield law.
The federal district court will apply the state courts' interpretation of state law in most circumstances. In the absence of precedent from the state's courts, the federal district court will follow prior federal court interpretations of the state's law. In actions involving both federal and state law, courts differ on whether federal or state law will apply.
Twelve federal circuits cover the United States. Each circuit has one circuit (appellate) court, and a number of district (trial) courts. The circuit courts must follow precedent established by the U.S. Supreme Court, but are not bound by other circuits' decisions. What follows is a general summary of how each of those circuits has interpreted the scope of a reporter's privilege under the First Amendment.
First Circuit (Maine, Massachusetts, New Hampshire and Rhode Island): Although the court has not articulated a specific standard, it nonetheless recognizes the need for balance between the interests of the news media and the right of criminal defendants to a fair trial. In a case that did not involve confidential information, the court held that, though the news media's concern about the burden of complying with subpoenas was legitimate, criminal defendants' need for information that might be used to impeach a key government witness outweighed the journalists' First Amendment interest in non-disclosure. (United States v. LaRouche Campaign)
Second Circuit (Connecticut, New York and Vermont): In civil cases, anyone seeking to enforce a subpoena against the news media must show that the material sought is "highly material and relevant," "necessary or critical to the maintenance of the claim," and "not obtainable from other available sources." (Baker v. F & F Investment) The same standard applies in criminal cases. (United States v. Burke)
Third Circuit (Delaware, New Jersey and Pennsylvania): The court recognizes a qualified common law privilege protecting reporters. In civil cases, courts must consider whether the information sought is material, relevant, necessary to the case and unavailable from other sources. (Riley v. City of Chester) The same standard applies in criminal cases. (United States v. Cuthbertson)
Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia): The First Amendment protects journalists from being compelled to reveal the identities of confidential sources unless the information sought was relevant, unavailable from other sources, and there was a compelling interest in disclosure. (LaRouche v. NBC) The same standard applies to non-confidential information in civil cases where the news media is not a party. (Church of Scientology Int'l v. Daniels) However, in a criminal prosecution the court held that the First Amendment did not protect against compelled disclosure of non-confidential information except in cases of harassment. (In re Shain)
Fifth Circuit (Louisiana, Mississippi and Texas): In a libel suit against a magazine, the court held that the First Amendment qualified privilege protecting a confidential source had been overcome because the source's identity went to the heart of the claim and the party seeking the disclosure presented substantial evidence that a statement in the magazine's article was false and defamatory, reasonable efforts were made to obtain the information from an alternative source, and the source's identity was necessary to proper preparation of the case. (Miller v. Transamerican Press, Inc.) Non-confidential information sought by a defendant in a criminal case is not protected by the privilege. (United States v. Smith)
Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee): The court refused to recognize a reporter's privilege based on the First Amendment, at least in regard to grand jury proceedings. (Storer Communications, Inc. v. Giovan)
Seventh Circuit (Illinois, Indiana and Wisconsin): The court has not explicitly defined the protection reporters enjoy against subpoenas. In a criminal case, the court upheld a trial court's decision to quash a subpoena because the information sought was not relevant enough to be of more than "speculative value." (United States v. Lloyd)
Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota): The court has not determined whether or not a reporter's privilege exists.
Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington): In civil cases, the First Amendment requires that the party seeking disclosure of non-confidential information show that despite exhaustion of reasonable alternative sources, the material is unavailable, does not merely duplicate other information already available, and clearly relevant to some important issue in the case. The information must be relevant in fact; mere speculation about the potential relevance will not justify disclosure. (Shoen v. Shoen) In criminal cases, the Sixth Amendment's guarantee of a fair trial outweigh a reporter's First Amendment interest in protecting the source of confidential information about criminal defendants. (Farr v. Pitchess)
Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming): In civil cases, the First Amendment requires courts to consider whether alternative sources had been exhausted, whether the information went to the heart of the matter, whether the information was relevant, and what sort of controversy was involved. (Silkwood v. Kerr-McGee Corp.)
Eleventh Circuit (Alabama, Florida and Georgia): In criminal cases, the First Amendment requires that the party seeking disclosure must show that the information sought was highly relevant, necessary to the case, and unavailable from alternative sources. (United States v. Caporale)
District of Columbia Circuit: In civil cases where the media organization is a party, the First Amendment requires that a party seeking disclosure of a confidential source's identity must show that the underlying litigation is not frivolous, the information sought goes to the heart of the claim, and all alternative sources have been exhausted. Courts should consider whether or not the journalist was a party to the litigation and if the privilege would shield him or her from liability. The privilege should overcome demands for disclosure in "all but the most exceptional cases," the court held. (Zerilli v. Smith)
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Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972)
Church of Scientology Int'l v. Daniels, 992 F.2d 1329 (4th Cir. 1993)
Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1976)
In re Shain, 978 F.2d 850 (4th Cir. 1992)
LaRouche v. NBC, 780 F.2d 1134 (4th Cir. 1986)
Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980)
Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979)
Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995)
Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977)
Storer Communications, Inc. v. Giovan, 810 F.2d 580 (6th Cir. 1987)
United States v. Burke, 700 F.2d 70 (2d Cir. 1983)
United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986)
United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980)
United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988)
United States v. Lloyd, 71 F.3d 1256 (7th Cir. 1995)
United States v. Smith, 135 F.3d 963 (5th Cir. 1998)
Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)
rcfp.org
Diz-
PS: Postponed a majority of my Vacation until First week in Feb. |
