Deck 11: Protection of News Sources, Notes and Recordings

Question 1

The First Amendment explicitly says that journalists have a constitutional right to withhold the names of confidential sources.

Answer 1

False

Question 2

The Supreme Court has recognized in the First Amendment an "implied" right for journalists to withhold the names of confidential sources.

Answer 2

False

Question 3

A subpoena duces tecum demands that the recipient produce notes, tapes, or documents. A subpoena ad testificandum demands that the recipient testify in court.

Answer 3

True

Question 4

The Supreme Court has never recognized a First Amendment right for journalists to withhold the names of confidential sources.

Question 5

Courts and legislatures sometimes require that journalists promise confidentiality to sources if journalists wish to claim a privilege to withhold the names of sources.

Question 6

Even when judges reject First Amendment and common law privilege claims, journalists may assert the Fifth Amendment privilege against self-incrimination if they are able to convince a judge there is a reasonable fear their testimony will probably lead to a criminal prosecution.

Question 7

Former New York Times reporter Judith Miller was released from prison when the Supreme Court overturned lower court rulings that misinterpreted Branzburg v. Hayes.

Question 8

The law of journalist's privilege is complex. In some cases where a court does not recognize a First Amendment-based privilege, a journalist may nonetheless be protected under a state statute.

Question 9

Prosecutors are more likely to have a "compelling" need for a journalists' information in a criminal case-when a defendant's life or freedom may be at stake-than in a civil case.

Question 10

A federal shield law allows "anyone who disseminates information to the public" to shield confidential sources from courts and grand juries.

Question 11

Courts are most likely to follow the precedent of Justice White's majority opinion in the Branzburg case when journalists are subpoenaed by grand juries, when they are asked to testify about something they have witnessed, and when they are being asked to produce non-confidential information.

Question 12

Recent cases show federal courts are finding support for a journalist's privilege in the federal common law.

Question 13

Although Justice Stewart dissented in Branzburg v. Hayes, his opinion has been widely incorporated into state shield laws.

Question 14

Journalists sometimes lose a statutory privilege to withhold confidential sources if the journalists observe-are witnesses to-criminal activity.

Question 15

The recent trend of appellate courts reading the Branzburg case narrowly was reflected in the Fourth Circuit's 2013 decision in United States v. Sterling.

Question 16

Prosecutors sometimes seek journalists' sources and notes when the information could be easily acquired from other sources.

Question 17

Journalists fear the public may be denied valuable reports because sources may "dry up" if journalists cannot promise confidentiality.

Question 18

Confidential sources promised confidentiality may sue for the tort of promissory estoppel if they are hurt by a journalist's disclosure of their identity.

Question 19

California's shield law protects journalists whose work is published on websites.

Question 20

Courts recognizing a First Amendment-based journalist's privilege have limited the privilege to the traditional news media.

Question 21

Courts are more reluctant to protect journalists' confidential sources in civil defamation suits involving media defendants than in suits in which the media are not parties.

Question 22

State courts increasingly are grappling with the issue of whether those who post information on newspaper websites are "sources" covered by state shield laws.

Question 23

No federal statute explicitly protects reporters from being ordered to testify in court.

Question 24

In 2010, support for a proposed federal shield law evaporated as Wikileaks began posting a trove of classified U.S. government documents.

Question 25

The FBI's use of National Security Letters (NSLs) has grown dramatically since 2001.

Question 26

The fear of cases similar to Cohen v. Cowles Media has proven unfounded as journalists rarely break a promise of confidentiality.

Question 27

Although Congress has the authority to charge those who refuse to comply with a congressional subpoena, such actions are rare. Thus, the contempt of Congress charges against the CEO of Backpage.com are unusual.

Question 28

Section 215 orders have rarely been used by the FBI.

Question 29

As a result of the USA Freedom Act of 2015, tech companies now regularly publish reports of the number of NSLs received each year along with data on other types of government requests.

Question 30

After backlash from the revelation that the Trump administration in 2020 subpoenaed the email and phone records of eight journalists, Attorney General Merrick Garland, who was appointed by President Biden, announced that the Department of Justice was revising its policy regarding the use of subpoenas and search warrants directed at journalists. He also expressed support for a federal shield law.

Question 31

In some states, journalists may withhold sources unless the courts or law enforcement officials demonstrate three things, including:

A) compelling need for the information
B) the relevance of the information to the case
C) an implication of the journalist in criminal wrongdoing
D) all of the above
E) A and B

Question 32

Justice White, who wrote the opinion for the Court in Branzburg v. Hayes, and Justice Stewart, who dissented, disagreed because:

A) Justice White did not believe that sources would dry up if journalists had no right to promise confidentiality, but Justice Stewart thought sources would dry up
B) Justice White saw the press as strong and hearty while Justice Stewart viewed the press as more vulnerable
C) Justice White thought it would be difficult to define who would get a privilege of confidentiality if one were created, but Justice Stewart disagreed
D) all of the above
E) none of the above

Question 33

In Branzburg v. Hayes, the Supreme Court:

A) did not establish a privilege permitting journalists to refuse to testify before a grand jury
B) supported an absolute privilege for journalists to withhold names
C) supported a qualified privilege for journalists to withhold names but not documentary sources
D) rules that grand juries had to prove the necessity of a journalist's testimony before a subpoena could be enforced
E) none of the above

Question 34

Justice White, author of the Court's opinion in Branzburg v. Hayes, demonstrated:

A) a deference to the authority of duly authorized grand juries to carry out their tasks of gathering and weighing information
B) a fundamental disagreement with Justice Stewart, the dissenter, over the ability of the press to report news if the names of sources must be disclosed to grand jurors
C) a dislike for journalists and journalism
D) none of the above
E) A and B

Question 35

Legislators creating shield laws often have difficulty defining the journalists and information workers who should have the privilege to withhold names of confidential sources. Shield laws usually extend the privilege of confidentiality

A) to anyone who disseminates information to the public
B) only to journalists employed more than half-time at a newspaper
C) to reporters and editors for established news organizations or media
D) none of the above definitions resemble how journalists are defined in shield laws
E) all of the above definitions are used about equally

Question 36

In most states with shield laws, to overcome a journalist's qualified privilege to withhold notes or the names of sources, the government usually has to show that:

A) the information sought is clearly relevant to a criminal investigation
B) there are no other sources for the information
C) there is a compelling need for the information
D) all of the above
E) A and B

Question 37

Even if journalists have a qualified privilege to withhold information under a shield law, journalists are likely to be required to provide confidential information when:

A) a grand jury demands the information
B) a defendant facing serious criminal charges seeks the information
C) a lawyer in any case seeks helpful information from a journalist
D) all of the above about equally
E) A and B

Question 38

Journalists welcome neither subpoenas nor search warrants, but they prefer subpoenas for information because:

A) subpoenas can be more easily challenged legally
B) there is time to prepare a response to a subpoena
C) searches are more intrusive
D) all of the above
E) A and B

Question 39

Zurcher v. The Stanford Daily established that:

A) officials with a search warrant can search a newsroom
B) officials with a warrant can search the offices of citizens not suspected of a crime
C) the First Amendment provides no protection from searches conducted with a valid search warrant
D) all of the above
E) A and B

Question 40

A journalist who claims a constitutional right not to reveal sources to a grand jury has:

A) a full First Amendment privilege, per the Supreme Court in Branzburg v. Hayes
B) a qualified First Amendment privilege, per the Supreme Court in Branzburg v. Hayes
C) no constitutional privilege, per the Supreme Court in Branzburg v. Hayes
D) no constitutional privilege but a federal statutory privilege, per the Federal Journalists Protection Act of 2017
E) none of the above

Question 41

State shield laws:

A) are applicable in federal proceedings
B) rarely specifically include web-based journalists
C) usually offer absolute protection to journalists
D) usually offer qualified protection to journalists
E) B & D

Question 42

A journalist's claim of a First Amendment-based privilege:

A) is unlikely to be successful when a grand jury demands sources or information
B) is unlikely to be successful if the journalist is asked to testify about criminal activity the journalist witnessed
C) is unlikely to be successful when asked to produce information not covered by a promise of confidentiality
D) all of the above
E) none of the above

Question 43

As part of a 2021 federal investigation into whether there was a criminal conspiracy to steal and publish the contents of a diary kept by President Biden's daughter as she underwent treatment for addiction, the FBI searched the residences of James O'Keefe, founder of Project Veritas, and two former employees. Which of these statements is NOT true about this case?

A) During the search, the FBI seized O'Keefe's cell phones.
B) Project Veritas claimed it was the target of an overzealous Justice Department
C) The presiding judge appointed a special master to ensure the government did not gain access to attorney-client-protected materials or materials covered by the First Amendment.
D) The U.S. Supreme Court ruled that the warrant complied with all Justice Department policies regarding searches of members of the news media.
E) None of the above

Question 44

What is the definition of the following term:
-Stewart's Branzburg dissent.

Question 45

What is the definition of the following term:
-Search warrants.

Question 46

What is the definition of the following term:
-Defining bloggers as journalists.

Question 47

What is the definition of the following term:
-Cohen v. Cowles Media Company.

Question 48

Ron Reporter writes a series of stories about university officials selling illegal drugs to dorm residents. Reporter does not observe any drug sales. On the basis of the articles, the district attorney charges the director of student housing with drug trafficking. As she begins preparation for trial, the district attorney asks the judge to order Reporter to reveal the names of sources and notes acquired for the articles. The district attorney (DA) tells the judge the names and sources "might help her a lot" as she tries to clear the campus of the scourge of drugs. Reporter refuses to reveal his sources and notes, citing the state shield law which is much like the three-part test Justice Stewart proposed in Branzburg v. Hayes. From the facts available, should Reporter be able to withhold notes and sources under the state shield law? Yes or no? Explain

Question 49

The campus Paper publishes a three-part series, written by Ron Reporter, about the sale on campus of illegal CDs imported from factories in Southeast Asia. The stories report that illegal sales are part of a national market in illicit sale of cheap but high-quality CDs. Ron Reporter (RR) promised confidentiality to his unnamed sources. He wrote a number of notes, drafts and opinions in the course of preparing his series. Paula Prosecutor (PP), a federal district attorney, is contemplating running for governor. She has always portrayed herself as "Tough on Crime." She concludes that fighting illegal CD sales on campus will serve the public interest as well as serve her political ambitions. She decides to get RR's unpublished notes, story drafts, and opinions to help her prosecute the illegal sellers and buyers. At first she considers getting a subpoena, demanding RR to turn over the notes and drafts. Then PP realizes she might get more favorable publicity in her fight against crime and her run for the governor's mansion if she "raids" the newsroom. Besides, she rationalizes, if she tries to get the notes and drafts through a subpoena, those "kids" at the Paper "will probably destroy the notes because they are probably friends of the sellers and buyers." She concludes that her efforts to stop illegal CD sales will even help reduce the U.S. trade deficit by reducing illegal imports. PP gets a search warrant from her friend Judge Pliable. When PP shows up at the Paper to conduct the search, Edward Editor (EE) protests that PP is about to conduct an illegal search. EE proclaims, first, that the First Amendment prohibits newsroom searches and, second, that a law enforcement official violates the Privacy Protection Act of 1980 by searching for journalists' "work product materials" in a newsroom without adequate justification. The search proceeds.

A) Did PP violate the First Amendment when she conducted the search of a newsroom where journalists were not themselves criminal suspects?
B) Did PP violate the Privacy Protection Act?