What makes a reporter a reporter? That question used to be simple—once, a reporter was someone who worked for a newspaper or a magazine. Then it became someone who worked for a newspaper or a radio station. Then television stations were added. Now, in the age of the Internet, anyone with an iPhone can call themselves a reporter.
The pros and cons of this dispersal of reporting capabilities are many and widely discussed. But one more issue to throw into the fray is how it affects who can call themselves a reporter when it comes to claiming the protections of reporter’s privilege.
Reporter’s privilege is the legal doctrine that allows reporters to refuse to reveal their confidential sources or, in some cases, nonconfidential material, either by quashing subpoenas or by refusing to testify in court without being held in contempt. Without this protection, says the privilege’s proponents, no sources would talk to reporters, and reporters would become simply tools of discovery for the courts and litigants, overburdened with subpoenas and chilled from reporting.
In most states, shield laws codify this privilege into law. In the federal system, however, the privilege comes from the Constitution—specifically, the Supreme Court’s 1972 case Branzburg v. Hayes. However, because the Supreme Court has not decided on reporter’s privilege since 1972 and Branzburg itself was a plurality opinion, each circuit’s interpretation of Branzburg and the corresponding privilege can vary, with some circuits recognizing the privilege only for confidential informants, some including nonconfidential materials, and some treating the fact that the subpoenaed party is a reporter as merely a circumstance to weigh in the normal “reasonable in light of the circumstances” test for subpoenas. However, all the circuits agree that the privilege is for reporters. So that begs the question—what is a reporter?
It’s a question that comes up surprisingly rarely. Generally, the answer is either obvious—a reporter for a traditional newspaper or television news station is clearly a reporter—or conceded. And state shield laws generally define the term “reporter,” though in some cases, these definitions have aged poorly, too connected to the media of their time—where does a blog fit into a statutory definition that requires news publication on a regular schedule, for instance?
For the federal courts, the dominant test to determine who qualifies for reporter’s privilege has come from the Second Circuit’s 1987 decision in von Bulow by Auersperg v. von Bulow. That court reasoned that “reporter” could not be restricted to simply those who work for the institutional press; the “informative function” of the press is also served by “lecturers, political pollsters, novelists, academic researchers, and dramatists.” The court therefore held that an individual qualified for reporter’s privilege if they demonstrated that they intended “to use the material in order to disseminate information for the public” and that their intent existed at the “inception of the newsgathering process.” Many of the circuits adopted this or a similar view, though others have not addressed the question.
Under the von Bulowanalysis, anyone could be a reporter who could convincingly demonstrate that they had the intent to publicly disseminate information, whether they are documentary filmmakers, authors, ad-makers or amateur bloggers. Logically, under the rationale for the privilege of preventing chilling of reporting, this makes sense—as long as a person might be chilled from spreading information by not having the protection, the media in which they were planning to publish should not matter.
But there are some limits to von Bulow. A person has to be engaged in the collection of news for dissemination. Someone who does not mean to publish to the public but only to a limited set of people is probably not a reporter, though no court has set a threshold. And those collecting information for a reason other than newsworthiness do not qualify, such as fiction writers, private lobbyists, advertisers, or those compiling information for internal reports or personal gratification. Those sorts of people, courts have reasoned, will not be chilled by not having the privilege; their other motivations will make them continue their information gathering.
This expansive conception of who qualified for federal reporter’s privilege was widely accepted until 2011, when, in Chevron Corp. v. Berlinger, the Second Circuit shocked everyone by holding that a documentary filmmaker did not qualify for reporter’s privilege. The filmmaker, Berlinger, had been “solicited” to make a documentary film about an ongoing class action litigation by a group of Ecuadorians against Chevron for pollution of their homeland. According to the court, the class action lawyer asked Berlinger to make a documentary from the point of view of his clients, and Berlinger spent three years filming what would become the documentary Crude. The class action defendants subpoenaed Berlinger’s outtakes, and Berlinger moved to quash the subpoena under his reporter’s privilege.
To the surprise of many, the Southern District of New York denied Berlinger’s motion. Then the Second Circuit affirmed the denial. To be a reporter, the Second Circuit said, one not only needed to pass the von Bulow test, but one also needed to be “independent.” If the reporter was not independent, then their objective is not the free flow of newsworthy information, but instead the objectives of whoever commissioned them, and the von Bulow rationales do not apply. The Second Circuit held that Berlinger was not independent because he had been solicited to tell the story from the point of view of the plaintiffs and had removed at least one scene from the film at the plaintiffs’ request. However, the Second Circuit did not define independence, other than noting that a reporter could show such things as editorial and financial independence.
Many feared that Berlinger signaled a catastrophic narrowing of reporter’s privilege. But it has been eight years since Berlinger, and no published decision has denied an individual reporter’s privilege based on Berlinger. Some district courts have rejected it as not the law of its circuit and gone back to a test similar to von Bulow. Others decided that the reporter passed the Berlinger independence test despite the fact that, in one case, the reporter later joined the legal team of one of the parties.
Even in the Second Circuit, the Southern District of New York—the court that initially decided Berlinger—held only two years after Berlinger that a Ken Burns documentary on the Central Park Five met the Berlingerstandard for independence despite a longstanding relationship between the filmmakers and the plaintiffs, statements made by the filmmakers that they sympathized with the plaintiffs, and the plaintiffs’ acknowledgment in the film as interviewees and sources. Those facts, the court held, were not enough to prove a lack of independence, when coupled with the filmmakers’ affidavits stating that they were independent and retained full editorial control of the film.
This case could signal that a court would not dare to say Ken Burns was not a journalist. Or it might signal simply that the Berlingertest was not as stringent as it first appeared, and the Ken Burns documentary passed the test. Or it could signal that Berlingerwas somehow sui generis, and that the expansive reading of “reporter” under von Bulow remains the only test. Given no case posing the question has reached a court of appeals, how the circuits will use Berlinger remains ambiguous.
The question of who qualifies for a reporter’s privilege is one that we can expect to come up more and more often as the means of spreading news becomes more numerous and dispersed. Is someone reporting an incident on Twitter a reporter? Is someone filming a protest to post on Facebook a reporter? What if they were invited by the protesters? As long as there is ambiguity, it creates the risk of judges narrowing the application of the privilege where the person seeking protection is operating outside of traditional mediums—a risk which, as Justice Stewart warned in his Branzburgdissent, could lead to a chilling effect and “the public dialogue… inevitably be[ing] impoverished.”
In re Bacon for an Order Pursuant to 28 U.S.C. §1782 to Conduct Discovery for Use in Foreign Proceedings v. Archer, No. 17-MC-00192-KLM, 2018 WL 4467182, at *3 (D. Colo. Sept. 17, 2018)
Simon v. Nw. Univ., 321 F.R.D. 328, 329 (N.D. Ill. 2017)