Journalist’s Privilege — Differing Levels of Protection for Confidential and Nonconfidential Information — Second Circuit Declines to Resolve Whether Privilege Derives from First Amendment

From United States v. Treacy, 2011 U.S. App. LEXIS 4623 (2d Cir. Mar. 9, 2011):

It is settled law in this Circuit, at least in the civil context, that a journalist possesses a qualified privilege protecting him or her from the compelled disclosure of even nonconfidential materials. See Chevron Corp. v. Berlinger, 629 F.3d 297, 306-07 (2d Cir. 2011); Gonzales v. NBC, 194 F.3d 29, 35 (2d Cir. 1999). This is so because

even where there [is] no issue of betrayal of a promised confidence, . . . "wholesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compliance, and could otherwise impair its ability to perform its duties -- particularly if potential sources were deterred from speaking to the press, or insisted on remaining anonymous, because of the likelihood that they would be sucked into litigation" [and] . . . unrestricted litigant access to press files would create socially wasteful incentives for press entities "to clean out files containing potentially valuable information lest they incur substantial costs" of subpoena compliance, and would risk "the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties."

Chevron Corp., 629 F.3d at 307 (quoting Gonzales, 194 F.3d at 35 (internal citations omitted)).

No party or amicus argues that any of the information sought from Forelle was confidential, or that he is protecting the identity of any source. Forelle, therefore, is not entitled to invoke the stronger privilege that protects confidential materials. Cf. United States v. Cutler, 6 F.3d 67, 71 (2d Cir. 1993) (where a party seeks confidential material from a journalist, "disclosure may be ordered only upon a clear and specific showing that the information is: [(1)] highly material and relevant, [(2)] necessary or critical to the maintenance of the claim, and [(3)] not obtainable from other available sources"). On the contrary, not only was Forelle not protecting any confidential material or source, he sought to withhold evidence that his source himself (Treacy) desired be disclosed. Thus, because "the protection of confidential sources is not involved, the nature of the press interest protected by the privilege is narrower" and the privilege is "more easily overcome." Gonzales, 194 F.3d at 36. "Where a civil litigant seeks nonconfidential materials from a nonparty press entity, the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Id.

***Dow Jones argues that the bar should be higher for overcoming the reporters' privilege in criminal cases, and that we should apply the "clear and specific showing" standard — used in civil cases only when confidentiality is at stake — in all criminal cases.

We are not persuaded. Dow Jones argues that its proposed rule is necessary to avoid a constitutional paradox that arises when a court must balance a reporter's First Amendment rights with a criminal defendant's Sixth Amendment rights, but this argument depends on the assumption that the reporter's privilege is derived from the First Amendment rather than a federal common law of privileges, a question we have previously declined to resolve absent any Congressional retrenchment of the privilege. See Gonzales, 194 F.3d at 35 n.6. We once again decline to wade into these constitutional waters, because absent from Dow Jones's brief is any convincing reason why the Gonzales test should not apply in criminal cases where the prosecution seeks to introduce nonconfidential materials. Dow Jones suggests that because the Department of Justice has adopted strict guidelines for itself with respect to subpoenaing reporters, see 28 C.F.R. § 50.10, this Court should adopt the same principles as binding propositions of law. Nothing in our case law suggests, however, that the journalist's privilege is stronger in criminal cases. If anything, in fact, we have recognized that our Court once set too high a bar for overcoming the privilege in criminal cases and consciously lowered that bar. See United States v. Cutler, 6 F.3d 67, 73 (2d Cir. 1993); United States v. Burke, 700 F.2d 70, 76-78 (2d Cir. 1983); see also Gonzales, 194 F.3d at 34 n.3 (observing that Cutler recognized that Burke "undervalued the needs of criminal defendants"). We now hold that, in instances where a reporter is not protecting a confidential source or confidential materials, the showing required to overcome the journalist's privilege is the same in a criminal case as it is in a civil case — namely, the showing required by Gonzales — and that this is true whether the party seeking to overcome the privilege is the prosecution or the defense.

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