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1811
NOTES
CONCEPTUALIZING AND RECONCEPTUALIZING
THE REPORTER’S PRIVILEGE IN THE AGE OF
WIKILEAKS
Rachel Harris*
The examination of the reporter’s privilege in light of WikiLeaks gives
rise to several imperative questions. Could WikiLeaks claim a federal
reporter’s privilege if the U.S. government were to ask it to disclose the
sources of its documents? Does the current federal law on reporter’s
privilege adequately address new media, such as WikiLeaks? And if not,
how should the law evolve to sufficiently accommodate organizations like
WikiLeaks?
This Note seeks to answer these questions. First, this Note advocates
that WikiLeaks would be able to claim the privilege under current federal
law. Second, this Note concludes that the current law on the reporter’s
privilege has not sufficiently evolved to account for entities like WikiLeaks.
Third, this Note discusses policy proposals to address the current
shortcomings and ultimately advocates for a qualified privilege, the scope
of which is determined by the source’s expectations, where the reporter
presents the source’s expectations in court on behalf of the source.
T
ABLE OF CONTENTS
I
NTRODUCTION ........................................................................................ 1813
I.
THE HISTORY OF THE FEDERAL REPORTER’S PRIVILEGE AND THE
DEVELOPMENT OF WIKILEAKS .................................................... 1815
A. The History of the Federal Reporter’s Privilege .................... 1815
1. The Purpose of the Reporter’s Privilege .......................... 1816
2. Branzburg v. Hayes: Does the First Amendment
Provide for a Reporter’s Privilege? ................................. 1817
3. Branzburg’s Progeny: The Circuit Split ......................... 1819
4. A Reporter’s Privilege Under the Federal Rule of
Evidence 501 ................................................................... 1821
* J.D. Candidate, 2015, Fordham University School of Law; M.Sc., International Relations,
2012, London School of Economics; B.A., 2010, Vassar College. Thank you to Professor
Abner Greene for his guidance in writing this Note. I would also like to thank my family
and friends for their constant support.
1812 FORDHAM LAW REVIEW [Vol. 82
5. Proposed Federal Statutes Establishing a
Reporter’s Privilege ........................................................ 1822
B. The Development of WikiLeaks............................................... 1824
1. The Rise of New Media ................................................... 1825
2. Increased Government Classification of Documents ....... 1826
3. The History of WikiLeaks ............................................... 1828
II.
APPLYING THE REPORTER’S PRIVILEGE TO WIKILEAKS ................... 1830
A. The Scope of the Reporter’s Privilege .................................... 1830
1. The Broadest Scope of the Federal Reporter’s Privilege:
Dicta in Branzburg .......................................................... 1831
2. The Federal Circuit Courts’ Approaches to
Defining the Scope of the Reporter’s Privilege .............. 1831
B. Perspective One: WikiLeaks May Not Claim
the Federal Reporter’s Privilege .......................................... 1833
C. Perspective Two: WikiLeaks May Claim
the Federal Reporter’s Privilege .......................................... 1836
1. Because the Medium in Which News Is Disseminated
Is Not Determinative, WikiLeaks May
Claim the Privilege .......................................................... 1836
2. WikiLeaks Disseminates News and WikiLeaks
Has the Requisite Intent To Disseminate Information
to the Public .................................................................... 1837
3. WikiLeaks Engages in Investigative Reporting ............... 1837
D. Taking Sides: WikiLeaks May Claim the Federal Reporter’s
Privilege Under the Existing Federal Law Because
WikiLeaks Engages in Investigative Journalism ................... 1838
1. The Case Law Ambiguously Defines Investigative
Journalism ....................................................................... 1838
2. Even If Investigative Journalism Requires More Than
the Mere Dumping of Documents, WikiLeaks Still
Engages in Investigative Journalism ............................... 1840
III.
RECONCEPTUALIZING THE REPORTER’S PRIVILEGE ........................ 1840
A. Policy Proposals To Address the
Privilege’s Shortcomings ...................................................... 1841
1. Institutional Considerations: Should Congress or the
Courts Determine the Scope of the Reporter’s
Privilege? ........................................................................ 1841
2. Policy Proposals ............................................................... 1842
a. Jones’s Approach: Anonymous Speech Rights
in the Confidential Source Context ........................... 1842
b. Stone’s Approach: Privilege Based on
the Source’s Expectations ......................................... 1845
c. Papandrea’s Approach: Presumptive Right to the
Privilege for Those Who Disseminate
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1813
Information to the Public with an Exception
for Imminent National Security Threats ................... 1847
B. Advocating for a Qualified Privilege Based
on the Source’s Expectations ................................................ 1848
1. Federal Statute ................................................................. 1848
2. Privilege Based on the Qualities of the Source ................ 1849
3. Qualified Privilege ........................................................... 1851
4. Applying the Policy Presented in This Note to
WikiLeaks ....................................................................... 1852
CONCLUSION ........................................................................................... 1853
I
NTRODUCTION
The largest leak of classified U.S. military documents in U.S. history
occurred on October 22, 2010.
1
Approximately 400,000 U.S. Army reports
documenting five years of the U.S. war in Iraq were released.
2
The
documents showed that U.S. authorities failed to investigate hundreds of
reports of rape, torture, and murder committed by Iraqi police and soldiers.
3
Despite U.S. and U.K. officials’ claims that a record of civilian casualties
did not exist, the documents revealed a log recording over 66,000
noncombatant deaths.
4
The organization behind this leak was WikiLeaks.
5
WikiLeaks is a
nonprofit media organization that publishes classified government and
corporate documents with a mission to increase transparency within the
halls of power through the dissemination of government and corporate
secrets.
6
Following the release of the Iraq War documents, U.S. government
officials and political pundits condemned WikiLeaks.
7
U.S. Senator Dianne
Feinstein proclaimed that the organization’s founder, Julian Assange,
should be criminally prosecuted.
8
Senator Joe Lieberman demanded that
private companies cut off any relationship with WikiLeaks.
9
Senator Mitch
McConnell called Julian Assange a “high-tech terrorist.”
10
Newt Gingrich
1. Baghdad War Diary, WIKILEAKS, http://wikileaks.org/irq/ (last visited Feb. 24,
2014).
2. See id.
3. David Batty, Iraq War Logs: Live Reaction and WikiLeaks, G
UARDIAN (Oct. 23,
2010), http://www.theguardian.com/world/2010/oct/23/iraq-war-logs-wikileaks.
4. Id.
5. See id.
6. See About, W
IKILEAKS, http://wikileaks.org/About.html (last visited Feb. 24, 2014).
7. See Glenn Greenwald, WikiLeaks Wins Major Journalism Award in Australia,
S
ALON (Nov. 27, 2011), http://www.salon.com/2011/11/27/wikileaks_wins_major_
journalism_award_in_australia/singleton/.
8. Dianne Feinstein, Op.-Ed., Prosecute Assange Under the Espionage Act, W
ALL ST.
J., Dec. 7, 2010, at A19.
9. Glenn Greenwald, Joe Lieberman Emulates Chinese Dictators, S
ALON (Dec. 2,
2010), http://www.salon.com/2010/12/02/lieberman_55/.
10. Henry Farrell & Martha Finnemore, End of Hypocrisy: American Foreign Policy in
the Age of Leaks, 92 F
OREIGN AFF. 22, 22 (2013).
1814 FORDHAM LAW REVIEW [Vol. 82
and Sarah Palin proclaimed that WikiLeaks was an enemy combatant.
11
The Pentagon’s spokesman deplored WikiLeaks for carelessly
disseminating the leaked documents around the world.
12
Despite the initial outrage among U.S. policymakers, WikiLeaks’ effect
on U.S. national security and intelligence has been minimal.
13
WikiLeaks,
however, has affected the media landscape, creating a new genre of
reporting and reinforcing the power of online media.
14
Moreover,
WikiLeaks has challenged the status quo in an area other than U.S. national
security and journalism: law.
Specifically, WikiLeaks has brought new questions to the debate
surrounding the federal reporter’s privilege.
15
The reporter’s privilege
allows a reporter to refuse to respond to a subpoena that seeks confidential
information or sources obtained in the newsgathering process
16
and to avoid
being in contempt of court for such a refusal.
17
The privilege can be
asserted in connection with criminal, civil, and grand jury proceedings.
18
Currently, however, the existence of a federal reporter’s privilege is
debatable.
19
There is no federal statute defining the privilege,
20
and the
only U.S. Supreme Court case on the privilege denied its existence.
21
Despite the Supreme Court’s ruling, nine federal circuit courts have found
that a reporter’s privilege exists.
22
However, the doctrine amongst these
circuits lacks consistency.
23
Thus, the law is unclear and inconsistent even
for traditional journalists seeking to obtain the privilege.
24
The changing
nature of media further complicates the federal reporter’s privilege because
it is difficult to define who is considered a reporter under the privilege.
25
The rise of online journalists—including bloggers, tweeters, instagrammers,
and operators of websites like WikiLeaks—brings new challenges to the
federal reporter’s privilege.
26
11. Greenwald, supra note 7.
12. Batty, supra note 3.
13. See Farrell & Finnemore, supra note 10, at 22 (explaining that Former Defense
Secretary Robert Gates said that WikiLeaks had a minimal impact on U.S. government
operations).
14. C
HARLIE BECKETT & JAMES BALL, WIKILEAKS: NEWS IN THE NETWORKED ERA 13
(2012).
15. See generally Jonathan Peters, Wikileaks Would Not Qualify To Claim Federal
Reporter’s Privilege in Any Form, 63 F
ED. COMM. L.J. 667 (2011).
16. See Romualdo P. Eclavea, Annotation, Privilege of Newsgatherer Against
Disclosure of Confidential Sources or Information, 99 A.L.R. 3d 37, 42 (1980).
17. See RonNell Andersen Jones, Rethinking Reporter’s Privilege, 111 M
ICH. L. REV.
1221, 1224 (2013).
18. See generally Eclavea, supra note 16.
19. See infra Part I.A.
20. See infra Part I.A.5.
21. See infra Part I.A.2.
22. See infra Part I.A.3.
23. See infra Part I.A.3.
24. See infra Part I.A.
25. See infra Part II.
26. See infra Part II; see also John J. Dougherty, Obsidian Financial Group, LLC v. Cox
and Reformulating Shield Laws To Protect Digital Journalism in an Evolving Media World,
13 N.C.
J.L. & TECH. ON. 287, 290 (2012), available at http://www.ncjolt.org/sites/default/
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1815
Specifically, the examination of the reporter’s privilege in light of
WikiLeaks gives rise to several imperative questions. Could WikiLeaks
claim a federal reporter’s privilege if the U.S. government were to ask it to
disclose the sources of its documents? Does the current federal law on
reporter’s privilege adequately address new media, such as WikiLeaks?
And if not, how should the law evolve to sufficiently accommodate
organizations like WikiLeaks?
This Note seeks to answer these questions. Part I of this Note explains
the history of the federal law on the reporter’s privilege and contextualizes
WikiLeaks in the altered media and national security landscape. Part II
outlines the federal law that addresses the scope of the reporter’s privilege,
discusses the two opposing arguments regarding whether WikiLeaks would
be able to claim the privilege under the current legal framework, and
ultimately agrees with the view that WikiLeaks would be able to claim the
privilege under current federal law. Finally, based on the premise that
federal law has not sufficiently evolved to account for entities like
WikiLeaks, Part III discusses policy proposals to address the current
shortcomings. Ultimately, this Note advocates for a qualified privilege, the
scope of which is determined by the source’s expectations, where the
reporter presents the source’s expectations in court on behalf of the source.
I.
THE HISTORY OF THE FEDERAL REPORTER’S PRIVILEGE AND THE
DEVELOPMENT OF WIKILEAKS
Part I of this Note outlines the history of the federal reporter’s privilege
and the development of WikiLeaks amidst the rise of new media and
increased government classification of national security documents. Part
I.A focuses on the purpose of the privilege and outlines the three potential
sources of the federal reporter’s privilege: court decisions interpreting the
First Amendment, Federal Rule of Evidence 501, and proposed federal
statutes. Part I.B contextualizes WikiLeaks within the changed media and
national security landscape.
A. The History of the Federal Reporter’s Privilege
One scholar has noted that the federal reporter’s privilege currently is a
“many-headed beast”—potentially found in case law interpreting the First
Amendment, Federal Rule of Evidence 501, and proposed congressional
legislation.
27
This section discusses the privilege’s purpose and outlines the
privilege’s three possible sources at the federal level.
28
files/6RD_Dougherty_287_322.pdf (“[O]nline journalists, bloggers, and other ‘new media’
users find themselves lacking clear legal guidance and are especially vulnerable in today’s
shield law landscape.”).
27. Peters, supra note 15, at 672.
28. Although the privilege has been codified at the state level in statutes and common
law in forty-nine states, this Note will focus solely on the privilege at the federal level. See
Geoffrey R. Stone, Why We Need a Federal Reporter’s Privilege, 34 H
OFSTRA L. REV. 39,
42 (2005).
1816 FORDHAM LAW REVIEW [Vol. 82
1. The Purpose of the Reporter’s Privilege
Scholars have pointed to two main purposes of the reporter’s privilege.
29
First, similar to other privileges based on occupational status (such as the
doctor-patient privilege and the attorney-client privilege), the reporter’s
privilege encourages the free and full flow of information into public
discourse.
30
Without some protection over the process by which news is
gathered and disseminated, the flow of information would be inhibited
because journalists would be more restrained in their writing, and
individuals would communicate less openly to reporters.
31
A robust press
is essential to a well-functioning democratic society
32
because it allows for
a strong marketplace of ideas, which enriches public discourse and fosters
democratic self-governance.
33
An informed public opinion is “the most
potent of all restraints upon misgovernment.”
34
Second, other judges and
scholars assert that the Constitution separates the press and the government,
and that without the reporter’s privilege, journalists would become an arm
of the government.
35
The remaining sections in this subpart discuss the
three potential sources of the reporter’s privilege at the federal level.
29. Erik Ugland, The New Abridged Reporter’s Privilege: Policies, Principles, and
Pathological Perspectives, 71 O
HIO ST. L.J. 1, 2–3 (2010) (“Those supporting the privilege
have traditionally rooted their arguments in the principle of autonomy and have relied on a
combination of instrumental and fundamental-rights rationales. The instrumental arguments
focus on the free flow of information . . . . The rights-based arguments . . . suggest that the
Constitution compels a strict separation between press and government . . . .”); see also infra
notes 30–35 and accompanying text.
30. Mary-Rose Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 M
INN. L.
REV. 515, 535 (2007); see also Stone, supra note 28, at 39 (“The goal of most legal
privileges is to promote open communication in circumstances in which society wants to
encourage such communication.”).
31. See Stephanie B. Turner, Protecting Citizen Journalists: Why Congress Should
Adopt a Broad Federal Shield Law, 30 Y
ALE L. & POL’Y REV. 503, 507 (2012); see also
Stone, supra note 28, at 40 (explaining that communication will be inhibited in the absence
of the reporter’s privilege). The main argument against the reporter’s privilege—as well as
other privileges—is that it deprives the factfinders of relevant evidence. See Stone, supra
note 28, at 48. The rules of evidence must balance the needs of the judicial process on the
one hand and competing societal interests on the other hand. Id. at 48–49.
32. See Stone, supra note 28, at 39.
33. See Jones, supra note 17, at 1252–53; see also Lili Levi, Social Media and the Press,
90 N.C.
L. REV. 1531, 1583–84 (2012) (asserting that media entities contribute to democracy
and a free society).
34. Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936); see also Turner, supra note
31, at 507 (claiming that an independent press serves as a necessary check on government
action).
35. See Branzburg v. Hayes, 408 U.S. 665, 725 (1972) (Stewart, J., dissenting) (stating
that without some privilege for reporters, the press would be an investigative arm of the
government); see also Lucy A. Dalglish & Casey Murray, Déjà Vu All Over Again: How a
Generation of Gains in Federal Reporter’s Privilege Law Is Being Reversed, 29 U.
ARK.
LITTLE ROCK L. REV. 13, 14 (2006) (noting that reporters have more credibility when they
are perceived as having independently collected and reported information); Potter Stewart,
Or of the Press, 26 H
ASTINGS L.J. 631, 633–34 (1975) (asserting that the Press Clause
protects the press’s institutional autonomy); Stone, supra note 28, at 39 (explaining that a
reporter’s privilege is essential to an independent press).
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1817
2. Branzburg v. Hayes: Does the First Amendment Provide for a
Reporter’s Privilege?
The First Amendment states, “Congress shall make no law . . . abridging
the freedom of speech, or of the press . . . .”
36
In 1972, the Supreme Court
decided its only case interpreting the First Amendment in regards to the
reporter’s privilege
37
: Branzburg v. Hayes.
38
In Branzburg, the Court
denied the existence of a reporter’s privilege under the First Amendment,
39
although a puzzling short concurrence by Justice Powell—the fifth vote
needed for the majority—has left many wondering whether the First
Amendment offers some protection for reporters.
40
The Supreme Court consolidated three cases to form Branzburg:
Branzburg v. Pound,
41
In re Pappas,
42
and Caldwell v. United States.
43
Branzburg v. Pound featured a reporter, Paul Branzburg, who observed and
interviewed a group of young people making and using drugs in Kentucky
and then wrote two news stories about them in a Louisville newspaper.
44
Branzburg was called to testify on two occasions before state grand juries to
obtain the names of his confidential sources, but he refused to testify.
45
Similarly, in both In re Pappas and Caldwell v. United States, state
prosecutors subpoenaed two different reporters who were covering the
Black Panther organization to testify before grand juries to reveal
confidential information.
46
Like Branzburg, Pappas and Caldwell refused
to testify because they promised their sources that they would not reveal
their identities.
47
Branzburg, Pappas, and Caldwell argued that the First
Amendment afforded them a privilege to protect their confidential
informants and their informants’ information.
48
The three reporters
asserted that requiring reporters to disclose confidential information would
36. U.S. CONST. amend. I.
37. See David Corneil, Harboring Wikileaks: Comparing Swedish and American Press
Freedom in the Internet Age, 41
CAL. W. INT’L L.J. 477, 513–14 (2011).
38. 408 U.S. 665 (1972). However, the Supreme Court will have the opportunity to hear
a case on the reporter’s privilege if it decides to grant certiorari. Lucy McCalmont, Risen
Lawyers File SCOTUS Petition, P
OLITICO (Jan. 13, 2014), http:// http://www.politico.com/
blogs/under-the-radar/2014/01/risen-lawyers-file-scotus-petition-181112.html. Lawyers for
the New York Times reporter James Risen filed a petition for certiorari in January 2014
regarding Risen’s ability to claim the privilege. Id.
39. See Branzburg, 408 U.S. at 683–86.
40. See infra text accompanying notes 54–62.
41. 461 S.W.2d 345 (Ky. 1970).
42. 266 N.E.2d 297 (Mass. 1971).
43. 434 F.2d 1081 (9th Cir. 1970).
44. See Branzburg, 408 U.S. at 667.
45. See id. at 667–71.
46. See id. at 672–79.
47. See id.
48. See id. at 679–80 (“[T]o gather news it is often necessary to agree either not to
identify the source of information published or to publish only part of the facts revealed, or
both; . . . if the reporter is nevertheless forced to reveal these confidences to a grand jury, the
source so identified and other confidential sources of other reporters will be measurably
deterred from furnishing publishable information, all to the detriment of the free flow of
information protected by the First Amendment.”).
1818 FORDHAM LAW REVIEW [Vol. 82
place a burden on newsgathering, which would outweigh any public interest
in the information to assist the criminal justice process.
49
Therefore, the central constitutional issue in Branzburg was whether
requiring reporters to testify before grand juries abridges the First
Amendment’s freedom of speech and press guarantees.
50
In a five-to-four
decision written by Justice Byron White, the Supreme Court held that
neither the First Amendment nor any other constitutional provision protects
reporters from disclosing confidential information to a grand jury.
51
Rather, a journalist has the same duty as an ordinary citizen to testify in
front of a grand jury.
52
The Court also denied a reporter’s privilege because
it would present practical difficulties, such as creating a definition of
“reporter” under the privilege.
53
Justice Lewis F. Powell joined the majority but wrote a separate
concurring opinion.
54
One commentator has referred to Powell’s
concurrence as “cryptic”; and, as a result, “no one is quite sure what the
[Branzburg] decision meant.”
55
Justice Powell’s concurring opinion first
clarified that the Court did not hold that newsmen who are subpoenaed to
testify before a grand jury are without constitutional rights in safeguarding
their sources.
56
He then said that a newsman who is called to a grand jury
to give information bearing only a tenuous relationship to the subject of the
investigation would still be able to file a motion to quash to seek an
appropriate protective order.
57
Justice Powell then claimed:
The asserted claim to privilege should be judged on its facts by the
striking of a proper balance between freedom of the press and the
obligation of all citizens to give relevant testimony with respect to
criminal conduct. The balance of these vital constitutional and societal
interests on a case-by-case basis accords with the tried and traditional way
of adjudicating such questions.
In short, the courts will be available to newsmen under circumstances
where legitimate First Amendment interests require protection.
58
The existence of a federal reporter’s privilege under the First Amendment
rests on these lines of Justice Powell’s concurrence.
59
The federal circuit
49. Id. at 681. In the reporter’s privilege context, both reporters, on the one hand, and
prosecutors or government officials, on the other, claim a need for information. While the
reporters argue in favor of the privilege, as a means to encourage the free flow of
information, the prosecutors or government officials oppose the privilege, as a roadblock to
obtaining valuable information for criminal prosecutions.
50. Markus E. Apelis, Fit To Print? Consequences of Implementing a Federal
Reporter’s Privilege, 58 C
ASE W. RES. L. REV. 1369, 1373 (2008).
51. See Branzburg, 408 U.S. at 682.
52. See id.
53. See id. at 703–04.
54. Adam Liptak, A Justice’s Scribbles on Journalists’ Rights, N.Y.
TIMES, Oct. 7, 2007,
§ 4, at 4.
55. Id.
56. Branzburg, 408 U.S. at 709–10 (Powell, J., concurring).
57. Id.
58. Id. at 710 (footnote omitted).
59. See infra notes 70–86 and accompanying text.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1819
courts, however, have interpreted these lines of Justice Powell’s opinion
differently.
60
The courts that interpreted his opinion as supporting a
reporter’s privilege have found a federal reporter’s privilege under
Branzburg because they believe that Justice Powell provided a vote to the
dissent, which made it so that a majority of the justices supported some
form of privilege.
61
Those courts that interpreted Justice Powell’s opinion
as denying a reporter’s privilege have not found a federal reporter’s
privilege under Branzburg.
62
Justice Potter Stewart’s dissent advocated for a reporter’s privilege and
outlined its scope.
63
Justice Stewart claimed that the reporter’s privilege
stemmed from the broad societal interest in the full and free flow of
information to the public that is central to achieving the First Amendment’s
goals.
64
He devised a three-part test to determine whether a journalist
would qualify under the privilege.
65
Under Stewart’s test, the government
must demonstrate the following for a reporter to be unable obtain the
privilege: (1) that there is probable cause to believe that the reporter has
relevant information about a specific probable violation of law; (2) that the
reporter’s information cannot be obtained through other means; and (3) a
compelling interest in the information.
66
In addition to Justice Stewart’s
dissent, Justice William O. Douglas dissented separately to advocate for an
absolute reporter’s privilege.
67
He argued that reporters would become an
arm of the government without an absolute privilege.
68
3. Branzburg’s Progeny: The Circuit Split
According to one commentator, Branzburg is “one of the most
misunderstood cases in the history of the Supreme Court.”
69
The lower
courts’ interpretations of Branzburg are conflicting.
70
The Sixth
71
and
60. See infra Part I.A.3.
61. See infra notes 76–86 and accompanying text.
62. See infra notes 70–71 and accompanying text.
63. See Branzburg, 408 U.S. at 725–52 (Stewart, J., dissenting). Justice William J.
Brennan, Jr. and Justice Thurgood Marshall joined Stewart’s dissent. See id. at 725.
64. See id. at 725–27.
65. See id. at 743.
66. See id.
67. See Apelis, supra note 50, at 1374.
68. See Branzburg, 408 U.S. at 722 (Douglas, J., dissenting).
69. Scott J. Street, Poor Richard’s Forgotten Press Clause: How Journalists Can Use
Original Intent To Protect Their Confidential Sources, 27 L
OY. L.A. ENT. L. REV. 463, 494
(2007).
70. See id.
71. See In re Grand Jury Proceedings, 810 F.2d 580, 584 (6th Cir. 1987) (holding that
the acceptance of a qualified reporter’s privilege would be equal to substituting the dissent in
Branzburg for its holding). However, despite the Sixth Circuit’s holding, the district courts
within the Sixth Circuit are split on the existence of the privilege. Compare In re
DaimlerChrysler AG Sec. Litig., 216 F.R.D. 395, 400–02 (E.D. Mich. 2003) (holding that
the court is bound by the Sixth Circuit’s ruling that a reporter’s privilege does not exist),
with Southwell v. S. Poverty Law Ctr., 949 F. Supp. 1303, 1312 (W.D. Mich. 1996) (holding
that a qualified privilege exists under certain circumstances).
1820 FORDHAM LAW REVIEW [Vol. 82
Seventh Circuits
72
have rejected the existence of a reporter’s privilege. The
Eighth Circuit has not made an explicit ruling on the issue,
73
although some
of the district courts within the Eighth Circuit have recognized the
privilege.
74
Nine circuit courts have found a qualified reporter’s
privilege.
75
Interpreting the majority opinion in Branzburg as a plurality
opinion because of the belief that Justice Powell’s concurrence advocated
for a privilege,
76
the District of Columbia,
77
First,
78
Second,
79
Third,
80
Fourth,
81
Fifth,
82
Ninth,
83
Tenth,
84
and Eleventh
85
Circuits have all
72. See McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (“A large number of
cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s
privilege . . . .”). Until the McKevitt decision, most courts within the Seventh Circuit
accepted a qualified privilege; however, the McKevitt ruling moved the courts within the
Seventh Circuit away from recognizing the privilege. See Dalglish & Murray, supra note 35,
at 39. Moreover, in 2007, the Seventh Circuit stated, “There isn’t even a reporter’s privilege
in federal cases.” U.S. Dep’t of Educ. v. NCAA, 481 F.3d 936, 938 (7th Cir. 2007).
73. See, e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 n.8 (8th Cir.
1997) (stating that the question of whether a reporter’s privilege exists is open in the circuit).
74. See Richardson v. Sugg, 220 F.R.D. 343, 347 (E.D. Ark. 2004) (holding that the
court should recognize a First Amendment qualified reporter’s privilege); Cont’l
Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 433 (E.D. Mo. 1984) (stating that
the existence of a qualified reporter’s privilege is not in doubt).
75. See infra notes 77–85 and accompanying text.
76. See, e.g., United States v. Smith, 135 F.3d 963, 968–69 (5th Cir. 1998) (“Although
the opinion of the Branzburg Court was joined by five Justices, one of those five, Justice
Powell, added a brief concurrence. For this reason, we have previously construed Branzburg
as a plurality opinion.”).
77. See, e.g., Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981) (holding that
Branzburg is not controlling in all cases regarding the privilege and that to determine
whether the privilege applies, courts should look to the facts of each case, “weighing the
public interest in protecting the reporter’s sources against the private interest in compelling
disclosure”).
78. See, e.g., United States v. LaRouche Campaign, 841 F.2d 1176, 1181–82 (1st Cir.
1988) (establishing a balancing test between the goals of the First Amendment and the
party’s need for information to establish the privilege).
79. See, e.g., United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (holding that to
protect the important interests of reporters and the public in preserving the confidentiality of
journalists’ sources, disclosure of confidential information may be ordered in certain
circumstances).
80. See, e.g., Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979) (“The strong
public policy which supports the unfettered communication to the public of information,
comment and opinion and the Constitutional dimension of that policy, expressly recognized
in Branzburg v. Hayes, lead us to conclude that journalists have a federal common law
privilege, albeit qualified, to refuse to divulge their sources.”).
81. See, e.g., Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) (explaining
that the reporter’s privilege recognized by the Supreme Court in Branzburg “is not absolute
and will be overcome whenever society’s need for the confidential information in question
outweighs the intrusion on the reporter’s First Amendment interests”).
82. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 725–26 (5th Cir. 1980)
(holding that a reporter has a First Amendment privilege that protects the refusal to disclose
the identity of confidential informants).
83. See, e.g., Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (holding that the
journalist’s privilege recognized in Branzburg is a “‘partial First Amendment shield’ that
protects journalists against compelled disclosure in all judicial proceedings” (quoting Farr v.
Pitchess, 522 F.2d 464, 467 (9th Cir. 1975))).
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1821
explicitly recognized a reporter’s privilege to varying degrees.
86
Therefore,
Branzburg launched a qualified reporter’s privilege based on the First
Amendment in many of the lower courts.
87
Because of these
inconsistencies, one scholar has noted that the First Amendment reporter’s
privilege doctrine post-Branzburg is confusing and ambiguous.
88
4. A Reporter’s Privilege Under the Federal Rule of Evidence 501
Because of the confusion that has followed Branzburg, some courts have
attempted to establish a reporter’s privilege under Federal Rule of Evidence
501.
89
Rule 501 states: “The common law—as interpreted by United
States courts in the light of reason and experience—governs a claim of
privilege unless any of the following provides otherwise: the United States
Constitution; a federal statute; or rules prescribed by the Supreme Court.”
90
Courts have reached different results regarding whether Rule 501 extends to
reporters.
91
Some courts have denied the existence of a reporter’s privilege
based on Rule 501,
92
while one circuit court has held that Rule 501 applies
to reporters.
93
Federal Rule of Evidence 501’s application to reporters was notably
mapped out in Judge David S. Tatel’s concurring opinion
94
in In re Grand
Jury Subpoena, Judith Miller.
95
Judge Tatel asserted that Branzburg held
only that the reporter’s privilege could not be derived from the First
84. See, e.g., Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977)
(holding that a reporter must respond to a subpoena by appearing to testify in court but that
he may claim his privilege in relationship to particular questions that probe his sources).
85. See, e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (holding
that the standard governing the exercise of the reporter’s privilege provides that information
may be compelled from a reporter claiming privilege only if the party requesting the
information can show “that it is highly relevant, necessary to the proper presentation of the
case, and unavailable from other sources”).
86. See Joel G. Weinberg, Supporting the First Amendment: A National Reporter’s
Shield Law, 31 S
ETON HALL LEGIS. J. 149, 172 (2006); see also Robert Bejesky, National
Security Information Flow: From Source to Reporter’s Privilege, 24 S
T. THOMAS L. REV.
399, 444 (2012) (explaining that nine circuit courts have recognized a qualified privilege and
have developed various tests that balance competing interests to ascertain whether source
disclosure is necessary to court processes).
87. See Jones, supra note 17, at 1225.
88. See id.
89. See Dougherty, supra note 26, at 309.
90. F
ED. R. EVID. 501.
91. See Papandrea, supra note 30, at 560–61.
92. See, e.g., United States v. Sterling, 724 F.3d 482, 499–500 (4th Cir. 2013) (holding
that Federal Rule of Evidence 501 is not a source of the reporter’s privilege); Scarce v.
United States (In re Grand Jury Proceedings), 5 F.3d 397, 402–03 (9th Cir. 1993) (same);
Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 139 (D.D.C. 2005) (rejecting the existence of a
federal common law reporter’s privilege).
93. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 146–47 (3d Cir. 1980)
(holding that there exists a reporter’s privilege based on Federal Rule of Evidence 501 in
criminal proceedings); Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979) (holding
that there exists a reporter’s privilege based on Federal Rule of Evidence 501 in civil
proceedings).
94. See Papandrea, supra note 30, at 563–64.
95. 438 F.3d 1141, 1172 (D.C. Cir. 2006) (Tatel, J., concurring).
1822 FORDHAM LAW REVIEW [Vol. 82
Amendment but failed to address whether the privilege could be obtained
through Rule 501.
96
Three years after Branzburg, Congress enacted
Federal Rule of Evidence 501, authorizing federal courts to develop
evidentiary privileges in federal question cases according to their
interpretations of the common law in light of reason and experience.
97
Thus, Judge Tatel asserted that today’s reason and experience supports the
recognition of a reporter’s privilege.
98
He said, “To disregard this modern
consensus in favor of decades-old views . . . would not only imperil vital
newsgathering, but also shirk the common law function assigned by Rule
501 . . . .”
99
Judge Tatel advocated for a qualified reporter’s privilege,
which could be overcome if the government proved the existence of three
factors: (1) its need for the information; (2) the exhaustion of alternative
sources; and (3) balancing the harm that the leak caused against the leaked
information’s value.
100
5. Proposed Federal Statutes Establishing a Reporter’s Privilege
In addition to a potential reporter’s privilege based on the First
Amendment and Federal Rule of Evidence 501, Congress has proposed
statutes establishing a qualified reporter’s privilege—most recently, the
Free Flow of Information Acts of 2009,
101
2011,
102
and 2013.
103
The Free Flow of Information Act of 2009 proposed a qualified
reporter’s privilege.
104
The House bill stated that a federal entity may not
compel a “covered person” (a person who qualifies for the privilege)
105
to
provide information unless a court determines by a preponderance of the
evidence that: (1) the party seeking to compel production of the
information has exhausted all reasonable alternative sources; (2) there are
reasonable grounds to believe that the covered person possesses relevant
information; (3) disclosure is necessary to a criminal investigation or to
prevent harm; and (4) the public interest in forcing disclosure of the
information outweighs the public interest in receiving the news.
106
Furthermore, the House bill defined a covered person as one “who
regularly . . . publishes news or information . . . for dissemination to the
public for a substantial portion of the person’s livelihood or for substantial
financial gain.”
107
Although the proposed House bill was generally
96. See id. at 1171.
97. See id. at 1166.
98. See id. at 1172.
99. Id.
100. Id. at 1175.
101. See H.R. 985, 111th Cong. (2009); S. 448, 111th Cong. (2009).
102. See H.R. 2932, 112th Cong. (2011).
103. H.R. 1962, 113th Cong. (2013); S. 987, 113th Cong. (2013). Approximately thirty-
six states have statutes establishing a reporter’s privilege, but no such statute currently exists
at the federal level. See Stone, supra note 28, at 51. State reporter’s shield statutes are
outside the scope of this Note.
104. See H.R. 985; S. 448.
105. See H.R. 985 § 4(2).
106. See id. § 2.
107. Id. § 4(2) (emphasis added).
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1823
favorable to online media reporters, a reporter who did not publish
information full time was likely excluded from the bill.
108
The Senate’s proposed bill had a slightly different definition of who
would qualify for the privilege.
109
The Senate defined a covered person as
someone who, with the primary intent to investigate events and obtain
material to disseminate information to the public, regularly reports or
publishes on such matters and has such intent at the inception of the
newsgathering process.
110
Thus, while the Senate’s bill did not require
reporters to disseminate news for financial gain, the bill still required them
to report regularly to qualify for the privilege.
111
Although the Free Flow of Information Act of 2009 passed in the House
of Representatives, it never reached a Senate vote.
112
The development of
WikiLeaks was the main reason for the bill’s failure.
113
While the bill’s
sponsors amended it to explicitly exempt bloggers from protections after
WikiLeaks,
114
some members of the Senate feared that the statute would
still be interpreted to protect WikiLeaks.
115
In 2011, the bill was reintroduced in the House of Representatives but
failed in the House and never reached the Senate.
116
Proponents of the bill
cited a number of reasons for its failure, including disagreement over who
should be considered a journalist and ongoing concerns that an organization
like WikiLeaks might be covered.
117
The Free Flow of Information Act of 2013, a similar version of the prior
bills, was introduced in the House and Senate in May 2013 in response to
the news that the U.S. Department of Justice had secretly subpoenaed
108. See Dougherty, supra note 26, at 309–10; see also Daxton R. “Chip” Stewart &
Anthony L. Fargo, Challenging Civil Contempt: The Limits of Judicial Power in Cases
Involving Journalists, 16 C
OMM. L. & POL’Y 425, 457 (2011) (explaining that part-time
journalists or bloggers might not have received the same protection as more traditional
mainstream journalists under the proposed congressional statute).
109. See S. 448 § 11(2).
110. Id.
111. See id.
112. See Dougherty, supra note 26, at 309.
113. See Stewart & Fargo, supra note 108, at 457–58; see also Paul Farhi, WikiLeaks Is
Barrier to Shield Arguments, W
ASH. POST, Aug. 21, 2010, at C1 (“Until just a few weeks
ago, news organizations thought they were cruising toward a long-cherished goal:
Congressional passage of a federal shield law to protect journalists from being forced to
reveal confidential sources. Then came Wikileaks.”).
114. See Morgan Weiland, Congress and Justice Dept’s Dangerous Attempts To Define
“Journalist” Threaten To Exclude Bloggers, E
LEC. FRONTIER FOUND. (July 23, 2013),
http://www.eff.org/deeplinks/2013/07/congress-and-justice-depts-dangerous-attempts-
define-journalist-threaten-exclude; see also Farhi, supra note 113 (discussing that sponsors
of the bill have signaled that they will draft an amendment that would specifically exempt
organizations like WikiLeaks that publish sensitive materials).
115. See Farhi, supra note 113 (explaining that members of Congress are concerned in the
wake of the WikiLeaks disclosures that the bill “gives . . . judges too much leeway to
determine what’s in the ‘public interest’ when it comes to protecting journalists in cases
involving national security”).
116. See H.R. 2932 (112th): Free Flow of Information Act of 2011,
GOVTRACK.US,
http://www.govtrack.us/congress/bills/112/hr2932 (last visited Feb. 24, 2014).
117. See Turner, supra note 31, at 505.
1824 FORDHAM LAW REVIEW [Vol. 82
personal and work telephone records of some Associate Press reporters.
118
The Senate has changed the language of who would be considered a
reporter under the bill from earlier versions of the Free Flow of Information
Act.
119
The new bill defines a covered person under four categories:
(1) anyone with an employment relationship with a news organization for at
least one year in the past twenty years, or three months in the previous five
years; (2) student journalists; (3) anyone who has performed substantial
freelance journalism work in the previous five years; or (4) anyone whom a
federal judge determines should have the privilege in the interest of justice
and to protect legitimate newsgathering.
120
As this Note is being published,
the Free Flow of Information Act of 2013 is in two House subcommittees:
the Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations and the Subcommittee on Courts, Intellectual Property, and
the Internet.
121
The Senate Judiciary Committee has ordered the bill to be
reported to the floor.
122
B. The Development of WikiLeaks
The changing nature of media in the internet age further complicates the
federal reporter’s privilege.
123
WikiLeaks and its relationship to the
privilege exemplifies this complexity.
124
This section contextualizes the
118. See Sean Sullivan et al., White House Pushes Media Shield Law As Holder Faces
Questions on Capitol Hill, WASH. POST (May 15, 2013), http://www.washingtonpost.com/
politics/on-capitol-hill-holder-to-face-questions-on-ap-phone-records-irs-scandal/2013/05/
15/d0dfc52c-bd70-11e2-89c9-3be8095fe767_story.html; see also Katie Rucke, What Counts
As ‘Journalism’? Senate To Decide, M
INT PRESS NEWS (Sept. 14, 2013),
http://www.mintpressnews.com/what-counts-as-journalism-senate-to-decide/168957/
(explaining that the Free Flow of Information Act of 2013 was introduced three days after
the news that the government had secretly subpoenaed two months’ worth of phone records
from Associated Press staff members and had obtained a confidential search warrant for a
Fox News journalist’s emails). In addition to promoting the introduction of the Free Flow of
Information Act to Congress, the Department of Justice released a guideline report
governing investigations and other law enforcement matters that involve journalists. See U.S.
DEP’T OF JUSTICE, REPORT ON REVIEW OF NEWS MEDIA POLICIES 1 (2013), available at
http://www.justice.gov/iso/opa/resources/2202013712162851796893.pdf. The report
detailed the Department of Justice’s policy revisions to strengthen protections for members
of the news media. See id.
119. Compare S. 448, 111th Cong. (2009), with S. 987, 113th Cong. (2013).
120. L
EONARD DOWNIE JR., COMM. TO PROTECT JOURNALISTS, THE OBAMA
ADMINISTRATION AND THE PRESS: LEAK INVESTIGATIONS AND SURVEILLANCE IN POST-9/11
AMERICA 22 (2013), available at http://www.cpj.org/reports/us2013-english.pdf.
121. See H.R. 1962: Free Flow of Information Act of 2013,
GOVTRACK.US,
https://www.govtrack.us/congress/bills/113/hr1962 (last visited Feb. 24, 2014).
122. See S. 987: Free Flow of Information Act of 2013,
GOVTRACK.US,
http://www.govtrack.us/congress/bills/113/s987 (last visited Feb. 24, 2014).
123. See Papandrea, supra note 30, at 518–19.
124. See Sandra Davidson & David Herrera, Needed: More Than a Paper Shield, 20
W
M. & MARY BILL RTS. J. 1277, 1278 (2012); see also Corneil, supra note 37, at 481
(explaining that American jurisprudence is currently struggling with how to regulate
WikiLeaks because it is a novel form of journalism). While WikiLeaks is the most well-
known website that provides leaked information, other similar websites have developed,
such as UniLeaks, FrenchLeaks, and BalkanLeaks. See L
EAK DIRECTORY,
http://leakdirectory.org (last visited Feb. 24, 2014). Furthermore, a few other mainstream
news organizations have adopted secure leaking technology similar to WikiLeaks, such as
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1825
development of WikiLeaks in the rise of new media and the
overclassification of government documents.
1. The Rise of New Media
Over the past decade, traditional print media have faced tremendous
challenges in the wake of the rise of the internet.
125
Since the mid-2000s,
the print press has declined in both circulation and advertising revenue.
126
Many print newspapers have gone bankrupt or reduced their operations.
127
In addition, the number of local papers and television stations has
drastically declined, and a small group of media companies owns the
majority of newspapers and television stations.
128
The decline in print media is largely a result of the internet, which has
generated online news and nontraditional media sources that serve society’s
informational needs.
129
The internet has fundamentally altered the way
society disseminates and receives information.
130
In addition to online
versions of traditional newspapers, millions of bloggers, tweeters, podcasts,
websites, and social media users have supplemented the mainstream news
media.
131
In 2010, approximately 61 percent of Americans received at least
part of their news from an online source, and 75 percent of online news
consumers received news through email or social networking sites.
132
In addition, the rise of bloggers and other “citizen journalists” has
changed the news media landscape.
133
While traditional journalists are
generally subject to formal editorial oversight, citizen journalists generally
lack such supervision.
134
In addition, citizen journalists often lack
professional journalism training as well as experience in the field, and they
often publish news stories only periodically.
135
Citizen journalists are more
the New Yorker’s Strongbox and the Wall Street Journal’s SafeHouse. See Ed Pilkington,
Strongbox: New Yorker’s Salvo in the ‘War Between Data Capture and Privacy,’
G
UARDIAN (May 17, 2013), http://www.theguardian.com/world/2013/may/17/new-yorker-
strongbox-aaron-swartz-data-privacy.
125. See Levi, supra note 33, at 1537.
126. See id.
127. See id.
128. See Scott Neinas, A Skinny Shield Is Better: Why Congress Should Propose a
Federal Reporters’ Shield Statute That Narrowly Defines Journalists, 40 U.
TOL. L. REV.
225, 245 (2008).
129. See Levi, supra note 33, at 1537–39.
130. See Randall D. Eliason, The Problems with the Reporter’s Privilege, 57 A
M. U. L.
REV. 1341, 1369–70 (2008).
131. Kendyl Salcito, New Media Trends, J
OURNALISM ETHICS,
http://www.journalismethics.info/online_journalism_ethics/new_media_trends.htm (last
visited Feb. 24, 2014).
132. K
RISTEN PURCELL ET AL., PEW RESEARCH CTR., UNDERSTANDING THE PARTICIPATORY
NEWS CONSUMER 3–4 (2010), available at http://www.pewinternet.org/~/media//
Files/Reports/2010/PIP_Understanding_the_Participatory_News_Consumer.pdf.
133. See Turner, supra note 31, at 508–11.
134. Id. at 510. Citizen journalists, however, obtain editorial oversight over the internet.
Id. at 511. If an individual publishes inaccurate information over the internet, then other
individuals can choose to comment and instantly correct the mistake. Id.
135. Id. at 510–11.
1826 FORDHAM LAW REVIEW [Vol. 82
likely to express controversial views and criticize traditional journalists’
work because they are not editorially supervised.
136
Thus, citizen
journalists are able to fill gaps in mainstream media coverage, thereby
increasing the full flow of information to the public.
137
2. Increased Government Classification of Documents
The classification of information is essential for the government to
protect public safety.
138
If information that merits classification is released,
whether by mistake or through leaks, the cost to national security can be
high.
139
Before 1940, military regulations governed classification determinations
in the United States.
140
In 1940, however, President Franklin Delano
Roosevelt issued an executive order giving the president authority over the
classification of military and naval documents.
141
In 1951, President Harry
S. Truman expanded classification authority to all executive agencies.
142
Classification rules have shifted under each new administration.
143
A profound shift in classification rules occurred after the terrorist attacks
of September 11, 2001,
144
which led to a rapid increase of intelligence and
government agencies to combat terrorism.
145
Because the government’s
national security role has increased after 9/11, both the number of secrets
and the number of people with access to secrets has greatly expanded.
146
President George W. Bush moved away from a presumption against
classification to a presumption in favor of classification post-9/11.
147
Previously, President William J. Clinton’s policy was that a document
should not be classified if there existed significant doubt regarding the
necessity of its classification.
148
However, President Bush deleted this
provision.
149
President Bush also permitted the reclassification of certain
declassified documents, changing the policies of the Clinton
Administration.
150
Because of these policies, the number of government
136. Id. at 511.
137. Id. at 511–12.
138. See E
LIZABETH GOITEIN & DAVID M. SHAPIRO, BRENNAN CTR. FOR JUSTICE,
REDUCING OVERCLASSIFICATION THROUGH ACCOUNTABILITY 7 (2011), available at
http://www.brennancenter.org/sites/default/files/legacy/Justice/LNS/Brennan_Overclassifica
tion_Final.pdf.
139. See Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and
National Security Information, 83 I
ND. L.J. 233, 239 (2008).
140. See id. at 241.
141. See Exec. Order No. 8381, 5 Fed. Reg. 1147 (Mar. 26, 1940).
142. See Exec. Order No. 10,290, 16 Fed. Reg. 9795 (Sept. 27, 1951).
143. See Papandrea, supra note 139, at 242.
144. D
OWNIE, supra note 120, at 6.
145. Id.
146. See id.
147. Cf. Papandrea, supra note 139, at 242.
148. See Exec. Order No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995).
149. See Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).
150. See Papandrea, supra note 139, at 242.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1827
secrets has soared.
151
In addition, the amount of money the government has
spent on classification has dramatically increased in the last decade.
152
Even though the Obama Administration reinserted the language from the
Clinton Administration in its Executive Order regarding classification of
national security documents,
153
the culture within the Obama
Administration does not favor such disclosure in practice.
154
Yet, government officials claim that a majority of the classified
documents should not be classified.
155
The director of the Information
Security Oversight Office
156
testified before Congress, claiming that “it is
no secret that the Government classifies too much information” and that, in
his experience, “many senior officials . . . candidly acknowledge the
problem of excessive classification . . . .”
157
In addition, WikiLeaks
provides anecdotal evidence of the phenomenon because analyses of the
leaked documents revealed hundreds of thousands of documents that should
not have been classified.
158
Commentators have suggested four main reasons for
overclassification.
159
First, government culture encourages document
classification.
160
Second, some government agencies wish to conceal
information that would reveal government misconduct or incompetence.
161
Third, because officials risk sanctions or public condemnation for revealing
sensitive information, they are pressured to classify documents.
162
Fourth,
151. See Dalglish & Murray, supra note 35, at 37. The Edward Snowden leaks provide
further anecdotal evidence of increasing government secrecy. In June 2013, Edward
Snowden, a computer technician for a U.S. defense contractor, leaked classified information
about an American surveillance program that collects phone and internet data. Mark Mazetti
& Michael S. Schmidt, Ex-C.I.A. Worker Says He Disclosed U.S. Surveillance, N.Y.
TIMES,
June 10, 2013, at A1.
152. See J
OHN P. FITZPATRICK, NAT’L ARCHIVES & REC. ADMIN., 2012 ANNUAL REPORT
TO THE
PRESIDENT 26 (2013), available at http://www.fas.org/sgp/isoo/2012rpt.pdf. While in
2000 the government spent $4.27 billion on security classification, the government spent
$9.77 billion in 2012. Id.
153. See Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009) (stating that a
document will not be classified if there exists significant doubt about the need to classify it).
154. D
OWNIE, supra note 120, at 4.
155. See David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National
Security and Leaks in a Post-Pentagon Papers World, 48 H
ARV. C.R.-C.L. L. REV. 473, 485
(2013) (explaining that Secretary of Defense Donald Rumsfeld’s deputy for
counterintelligence and security and the 9/11 Commission co-chair estimate that between 50
and 90 percent of classified documents should not be classified).
156. The Information Security Oversight Office oversees the government’s security
classification system. See Information Security Oversight Office (ISOO), NAT’L ARCHIVES,
http://www.archives.gov/isoo/ (last visited Feb. 24, 2014).
157. Overclassification As a Barrier to Critical Information Sharing: Hearing Before the
Subcomm. on Nat’l Sec., Emerging Threats, and Int’l Relations of the H. Comm. on Gov’t
Reform, 108th Cong. 28 (2004) (statement of J. William Leonard, Director, Information
Security Oversight Office); see also D
OWNIE, supra note 120, at 26.
158. See Patricia L. Bellia, Wikileaks and the Institutional Framework for National
Security Disclosures, 121 Y
ALE L.J. 1448, 1524 (2012); see also McCraw & Gikow, supra
note 155, at 485–86.
159. See G
OITEIN & SHAPIRO, supra note 138, at 2.
160. See id.
161. See id.
162. See id.
1828 FORDHAM LAW REVIEW [Vol. 82
there is little review of classification decisions
163
and, even when there is
adequate review, the classification system does not create incentives to
challenge improper classification.
164
3. The History of WikiLeaks
WikiLeaks is a global, nonprofit, internet-based media organization that
publishes corporate and government documents otherwise unavailable to
the public.
165
WikiLeaks was launched in 2007 with a mission to defend
free speech, improve the common historical record, and support human
rights around the world.
166
WikiLeaks also provides an innovative, secure,
and anonymous way for sources to leak information.
167
WikiLeaks accepts
leaked material in person or through its electronic drop box and publishes
original documents alongside news stories.
168
Julian Assange, an
Australian antiwar activist and former hacker, founded WikiLeaks.
169
Assange remains WikiLeaks’ spokesman.
170
To further its mission,
WikiLeaks promotes its stories to mainstream news outlets.
171
WikiLeaks
claims to only publish documents that reveal abuses within the government
and corporate spheres, and it verifies the accuracy of all submitted
documents.
172
Since its development, Wikileaks has published a range of documents.
173
In 2007, WikiLeaks published the U.S. Army’s Guantánamo Bay detention
center operating procedures.
174
In 2008, WikiLeaks published documents
regarding a Swiss bank’s money-laundering activities, as well as the
contents of Sarah Palin’s email account.
175
Since 2010, WikiLeaks has
focused on releasing classified U.S. government documents.
176
In April
2010, WikiLeaks released classified U.S. military video footage of three
163. See DOWNIE, supra note 120, at 26.
164. See G
OITEIN & SHAPIRO, supra note 138, at 2.
165. See Kyle Lewis, Wikifreak-Out: The Legality of Prior Restraints on Wikileaks’
Publication of Government Documents, 38 W
ASH. U. J.L. & POL’Y 417, 420 (2012).
166. See About, supra note 6.
167. See id.
168. See id. WikiLeaks’ drop box, however, is currently unavailable because the website
and its founder have been fraught with legal and financial problems. Pilkington, supra note
124. Currently, the only way to leak information to WikiLeaks is through direct contact with
one of the organization’s members. Id.
169. See Corneil, supra note 37, at 484.
170. See id.
171. See Lewis, supra note 165, at 420.
172. See id. at 421. To verify the authenticity of the leaked documents, WikiLeaks uses
traditional journalism techniques as well as digital technology methods. Peters, supra note
15, at 679–80. WikiLeaks attempts to determine the cost of forgery and motive of possible
forgery. Id. If necessary, WikiLeaks will look externally to obtain the document’s
verification. Id. at 680.
173. See Lewis, supra note 165, at 421–23.
174. Id. at 421.
175. Id. at 421–22.
176. See Bellia, supra note 158, at 1473–75.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1829
helicopter strikes in Baghdad.
177
The video had approximately 2 million
views on YouTube and was played in the news hundreds of times.
178
In July and October 2010, WikiLeaks released its most notorious
documents—the “Afghan War Diary” and the “Iraq War Log”—which
contained over 90,000 U.S. military documents related to the war in
Afghanistan and 400,000 U.S. military documents related to the Iraq
War.
179
The documents from Afghanistan detailed how the United States
lacked the resources to effectively wage the war in Afghanistan and
revealed information regarding the Pakistani intelligence service’s
connections to the Taliban.
180
The documents from Iraq were mostly low-
level, confidential U.S. army field reports.
181
This release was the largest
leak of classified data in U.S. history
182
and drew comparisons to the
infamous Pentagon Papers that were leaked during the Vietnam War.
183
The U.S. government responded to WikiLeaks’ document release with
outrage.
184
For example, the chairman of the Committee on Homeland
Security in the House of Representatives asserted that Julian Assange was
an enemy of the United States and should be prosecuted.
185
However,
despite these outcries, Julian Assange has not been arrested in connection
with WikiLeaks, and no charges have been brought against the website
directly.
186
Moreover, scholars and political officers have asserted that
WikiLeaks had little effect on the United States’ national security and
foreign policy agenda.
187
Despite having only a small effect on international relations, one scholar
has noted that WikiLeaks has advanced journalism.
188
Although politically
motivated journalism and leaking are not new, WikiLeaks published an
unprecedented number of documents around the world in a very short time
177. Id.
178. See id.
179. See id. at 1475–76; Corneil, supra note 37, at 478; Lewis, supra note 165, at 422–23.
180. See Lewis, supra note 165, at 423.
181. See id.
182. See supra note 1 and accompanying text.
183. Corneil, supra note 37, at 479.
184. See Greenwald, supra note 7.
185. Press Release, U.S. House of Representatives Comm. on Homeland Sec., King Re-
Introduces Bill To Strengthen DOJ Authority To Prosecute Leaks of Intelligence (Feb. 15,
2011), available at http://homeland.house.gov/press-release/king-re-introduces-bill-
strengthen-doj-authority-prosecute-leaks-intelligence.
186. See Kate Kovarovic, When the Nation Springs a [Wiki]leak: The “National
Security” Attack on Free Speech, 14 T
OURO INT’L L. REV. 273, 300 (2011). The only person
who has been arrested in connection with the leaking is former U.S. Army soldier Bradley
Manning. Id. In July 2013, Manning was convicted of violating six counts of the Espionage
Act for providing more than 700,000 government files to WikiLeaks and was subsequently
sentenced to thirty-five years in prison. See Charlie Savage & Emmarie Huetteman, Manning
Setenced to 35 Years for a Pivotal Leak of U.S. Files, N.Y.
TIMES, Aug. 22, 2013, at A1.
187. See supra note 13; see also Charlie Beckett, WikiLeaks and Networked-Era News,
OPENDEMOCRACY (Aug. 15, 2012), http://www.opendemocracy.net/charlie-beckett/
wikileaks-and-network-era-news (“Diplomats who previously denounced WikiLeaks as a
weapon of terror that threatened western democracy now claim it has had no impact.”).
188. Beckett, supra note 187.
1830 FORDHAM LAW REVIEW [Vol. 82
period.
189
In addition, WikiLeaks’ collaboration with mainstream media
outlets was an innovation in journalism.
190
To exploit the mainstream
media’s brands and large audiences, Julian Assange decided to work with
traditional journalists to have a greater political impact around the world.
191
WikiLeaks was able to use the scale and reach of the internet while also
harnessing mainstream media’s connections to a mass audience and
networks of powerful individuals.
192
II.
APPLYING THE REPORTER’S PRIVILEGE TO WIKILEAKS
The rise of online journalism—such as WikiLeaks—brings new
questions to the federal reporter’s privilege debate.
193
One of these
questions is whether WikiLeaks could claim a federal reporter’s privilege if
the U.S. government were to ask WikiLeaks to disclose the sources of its
documents.
194
This Part addresses the two competing arguments regarding
whether WikiLeaks could claim the reporter’s privilege under the current
legal framework. Part II.A discusses the federal law that outlines the scope
of the privilege. Part II.B presents the first perspective—the view of
scholars John Peters, Kellie Clark, and David Barnette—which argues that
WikiLeaks would not be able to claim the privilege under the current
federal law on the scope of the reporter’s privilege. Part II.C discusses the
contrary perspective of scholar Yochai Benkler, who contends that
WikiLeaks would be able to claim the privilege under the current law, and
the views of scholar Mary-Rose Papandrea and others who claim that
WikiLeaks has some of the characteristics needed to obtain the privilege.
Part II.D ultimately concludes that WikiLeaks would be able to claim the
privilege.
A. The Scope of the Reporter’s Privilege
In Branzburg, the Court decided not to extend the reporter’s privilege
under the First Amendment because, among other reasons, the Court
acknowledged that if it granted the privilege, then it would also have to
determine who qualified as a reporter under the privilege.
195
The Court
believed that determining this classification would be a difficult and
uncertain task.
196
Justice White said:
189. Id.
190. Id.
191. Id.
192. Id.
193. See supra note 26.
194. Peters, supra note 15, at 670; see also Mary-Rose Papandrea, The Publication of
National Security Information in the Digital Age, 5 J.
NAT’L SEC. L. & POL’Y 119, 119
(2011) (“One dominant theme in the discussion of how to strike the balance between an
informed public and the need to protect legitimate national security secrets is whether new
media entities like WikiLeaks are part of ‘the press’ and whether Julian Assange and his
cohorts are engaging in ‘journalism.’”).
195. See Branzburg v. Hayes, 408 U.S. 665, 703–04 (1972).
196. See id.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1831
We are unwilling to embark the judiciary on a long and difficult journey
to such an uncertain destination. The administration of a constitutional
newsman’s privilege would present practical and conceptual difficulties
of a high order. Sooner or later, it would be necessary to define those
categories of newsmen who qualified for the privilege . . . .
197
Thus, the Court presciently outlined what it viewed as a major conceptual
difficulty in granting the privilege.
198
This section discusses the federal case law that defines the scope of the
privilege. Part II.A.1 outlines the Supreme Court’s broad view of the
definition of a reporter as detailed in Branzburg v. Hayes. Part II.A.2
discusses the legal framework that has emerged in the federal circuit courts.
1. The Broadest Scope of the Federal Reporter’s Privilege:
Dicta in Branzburg
The Branzburg Court believed that defining the privilege narrowly would
be “a questionable procedure in light of the traditional doctrine that liberty
of the press is the right of the lonely pamphleteer who uses carbon paper or
a mimeograph just as much as of the large metropolitan publisher who
utilizes the latest photocomposition methods.”
199
The Court asserted that
the freedom of the press is a fundamental personal right that is not solely
confined to those working for the institutional media.
200
Rather, the press
includes every sort of publication that disseminates information to the
public.
201
According to the Court in Branzburg, if the privilege were
granted, almost any author would be able to claim the privilege because the
reporter would be able to demonstrate that he contributes information to the
public, relies on confidential sources to gain information, and that his
sources will be silenced if he is forced to disclose their identity before a
grand jury.
202
2. The Federal Circuit Courts’ Approaches to Defining the
Scope of the Reporter’s Privilege
Of the nine federal circuits that have established a qualified privilege,
only five have determined who is considered to be a journalist for the
purpose of the privilege.
203
In Von Bulow v. Von Bulow,
204
the Second
197. Id.
198. See id.; see also In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1156–57
(D.C. Cir. 2006) (Sentelle, J., concurring) (noting the difficulty in defining the privilege’s
scope and questioning whether the privilege should apply to the “stereotypical ‘blogger’
sitting in his pajamas at his personal computer posting on the World Wide Web”).
199. Branzburg, 408 U.S. at 703–04.
200. See id. at 704.
201. Id.
202. Id. at 705.
203. See Peters, supra note 15, at 672–78. The D.C., Fourth, Fifth, and Eleventh Circuits
have not yet defined the boundaries of whom the privilege protects. See
Sanford L. Bohrer &
Scott D. Ponce, Reporter’s Privilege: 11th Cir., R
EPORTERS COMMITTEE FOR FREEDOM
PRESS 5 (Gregg P. Leslie et al. eds., 2010), http://www.rcfp.org/rcfp/orders/docs/
privilege/11.pdf; Thomas S. Leatherbury et al., Reporter’s Privilege: 5th Cir., R
EPORTERS
1832 FORDHAM LAW REVIEW [Vol. 82
Circuit held that to obtain the privilege, an individual must have had the
intent to disseminate to the public the information that he or she collected at
the inception of the newsgathering process.
205
Prior experience as a
professional journalist may be persuasive evidence of present intent to
gather information for the purpose of dissemination, but it is not
determinative.
206
An inexperienced reporter may still obtain the
privilege.
207
In Shoen v. Shoen,
208
the Ninth Circuit adopted the Von Bulow test.
209
In
the Ninth Circuit, the test is whether the person who wishes to obtain the
privilege had the intent to disseminate to the public the information sought
and whether that intent was present at the beginning of the newsgathering
process.
210
If both of these conditions are satisfied, then the privilege may
be granted.
211
Moreover, similar to the Von Bulow court, the Ninth Circuit
held that the reporter’s privilege is designed to protect investigative
reporting regardless of the medium used to report the news to the public.
212
The Ninth Circuit said, “What makes journalism journalism is not its format
but its content.”
213
Both the Second and Ninth Circuits focus on the activity of the person
who wishes to invoke the privilege, rather than the professional affiliation
of that person.
214
In addition, both “circuits believed the reporter’s
privilege protect[s] a particular type of journalism—investigative reporting”
and implicitly require the information to be news.
215
Yet, these circuits did
not define investigative reporting.
216
The Third Circuit has also addressed the privilege’s scope.
217
In In re
Madden,
218
the Third Circuit used the principles discussed in Von Bulow
and Shoen to create a three-part test.
219
The Madden court held that to
COMMITTEE FOR FREEDOM PRESS 8 (Gregg P. Leslie et al. eds., 2010), http://www.rcfp.org/
rcfp/orders/docs/privilege/05.pdf; Bruce W. Sanford et al., Reporter’s Privilege: 4th Cir.,
R
EPORTERS COMMITTEE FOR FREEDOM PRESS 7 (Gregg P. Leslie et al. eds., 2010),
http://www.rcfp.org/rcfp/orders/docs/privilege/04.pdf; Charles D. Tobin & Judith F. Bonilla,
Reporter’s Privilege: D.C. Cir., R
EPORTERS COMMITTEE FOR FREEDOM PRESS 15–16 (Gregg
P. Leslie et al. eds., 2010), http://www.rcfp.org/rcfp/orders/docs/privilege/00.pdf (explaining
that the D.C. District Court has examined the scope of the privilege, but that the D.C. Circuit
has not yet examined the issue).
204. 811 F.2d 136 (2d Cir. 1987).
205. Id. at 142.
206. Id. at 144.
207. Id.
208. 5 F.3d 1289 (9th Cir. 1993).
209. Id. at 1293.
210. Id.
211. Id. at 1294.
212. See id. at 1293.
213. Id.
214. Peters, supra note 15, at 675–76.
215. William E. Lee, The Priestly Class: Reflections on a Journalist’s Privilege, 23
C
ARDOZO ARTS & ENT. L.J. 635, 673–74 (2006).
216. Shoen, 5 F.3d at 1289; Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir. 1987).
217. See Peters, supra note 15, at 674.
218. 151 F.3d 125 (3d Cir. 1998).
219. See id. at 131; see also Papandrea, supra note 30, at 571.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1833
obtain the privilege, a person must satisfy that he or she: (1) is engaged in
investigative reporting; (2) is gathering news; and (3) possesses the intent to
disseminate this news to the public at the beginning of the newsgathering
process.
220
While this test seemingly would require the Third Circuit to
define “investigative reporting” and “news,” the Third Circuit did not
define these ambiguous terms.
221
In addition, two other circuits have adopted a similar framework to the
one found in Von Bulow, Shoen, and Madden.
222
From these cases, four
principles defining the privilege’s scope have emerged: (1) the medium
alone does not determine whether a person qualifies as a reporter; (2) the
person asserting the privilege must have the intent to disseminate
information to the public at the beginning of the newsgathering process;
(3) the person asserting the privilege must be engaged in investigative
reporting; and (4) the content the person disseminated must be news.
223
The remainder of this Part discusses whether WikiLeaks would be able to
claim the reporter’s privilege in light of these four main principles.
B. Perspective One: WikiLeaks May Not Claim
the Federal Reporter’s Privilege
This Part outlines the argument that WikiLeaks cannot claim the
reporter’s privilege, as articulated by Peters, Clark, and Barnette, that
WikiLeaks does not engage in investigative reporting because it only
dumps documents.
224
Under the principles established in Von Bulow,
Shoen, and Madden, WikiLeaks could clearly meet the first, second, and
fourth requirements.
225
Under the first principle, WikiLeaks’ operation on
the internet does not affect whether it would be able to obtain the
privilege.
226
Moreover, under the second and fourth principles, WikiLeaks
intends to bring important news to the public and the content disseminated
on its website is news.
227
However, the third principle—that the person
220. In re Madden, 151 F.3d at 131.
221. See Peters, supra note 15, at 674.
222. See, e.g., Cusumano v. Microsoft, 162 F.3d 708, 714 (1st Cir. 1998) (stating that the
present case fits into the legal framework set by Von Bulow, Shoen, and Madden); Silkwood
v. Kerr-McGee Corp., 563 F.2d 433, 436–37 (10th Cir. 1977) (extending the privilege to a
filmmaker producing a documentary, implicitly asserting that the reporter’s privilege is not
solely reserved for members of the institutionalized press, and that the test is whether the
individual engaged in investigative reporting to disseminate news to the public).
223. Peters, supra note 15, at 676.
224. See id. at 676–87; see also Kellie C. Clark & David Barnette, The Application of the
Reporter’s Privilege and the Espionage Act to Wikileaks, 37 U.
DAYTON L. REV. 165, 177–
79 (2012). Peters also claims that WikiLeaks does not engage in investigative journalism
because it does not take steps to minimize harm to people who could be affected by its
actions. See Peters, supra note 15, at 683. However, this discussion is outside the scope of
this Note because, among other things, Peters’s argument is grounded in philosophy
regarding the role of journalism in society rather than the law on the reporter’s privilege. See
id.
225. See Peters, supra note 15, at 676.
226. Id.
227. See id. at 676–77.
1834 FORDHAM LAW REVIEW [Vol. 82
asserting the privilege must be engaged in investigative reporting—is
problematic when applied to WikiLeaks.
228
Although WikiLeaks is a media organization and may have adopted
some characteristics similar to traditional journalists, Peters, Clark, and
Barnette contend that WikiLeaks is not engaged in investigative
reporting.
229
Investigative reporting involves more than simply putting
documents on a website.
230
Investigative reporting often involves in-depth,
long-term research, and multiple-article reporting based on extensive
interviewing or undercover surveillance.
231
Furthermore, when
investigative reporters disseminate news to the public, their stories not only
describe events but also provide interpretation or analysis.
232
Peters claims that federal court decisions support this meaning of
investigative reporting.
233
In Cusumano v. Microsoft,
234
the First Circuit
granted the privilege to two business professors who conducted interviews
prior to writing a book about the competition between two companies.
235
The First Circuit held that these interviews were protected under the
reporter’s privilege because the sole purpose of the interviews was to gather
data so that the business professors could analyze and report their findings
about these two corporations’ management practices.
236
In Summit
Technology, Inc. v. Healthcare Capital Group, Inc.,
237
the District of
Massachusetts extended the privilege to a financial advisor’s reports, which
contained independent research, analysis, and conclusions.
238
Similarly, in
Blum v. Schlegel,
239
the Western District of New York held that a law
student who was a reporter for a law school newspaper was able to obtain
the privilege because the article at the center of the case exposed and
described, in the student’s own words, a controversy at the school and
quoted some of the people involved.
240
In addition, Peters cites two decisions from the District Court for the
District of Columbia that clarified the meaning of investigative reporting.
241
In U.S. Commodity Futures Trading Commission v. McGraw-Hill Cos.,
242
the court granted the privilege to a publisher that produced indices and price
228. Id. at 676.
229. Id. at 677; see also Clark & Barnette, supra note 224, at 178 (“While WikiLeaks
itself characterizes its website as a form of media and alleges it is engaging in the journalistic
process—by employing reporters who review, rewrite, and publish the material received
from WikiLeaks’ anonymous sources—in truth, WikiLeaks does not engage in any form of
investigative reporting.”).
230. Peters, supra note 15, at 677.
231. Id.
232. See id. at 677–78.
233. See id. at 678.
234. 162 F.3d 708 (1st Cir. 1998).
235. Peters, supra note 15, at 678.
236. Id.
237. 141 F.R.D. 381 (D. Mass. 1992).
238. Id. at 385.
239. 150 F.R.D. 42 (W.D.N.Y. 1993).
240. See Peters, supra note 15, at 678.
241. See id.
242. 390 F. Supp. 2d 27 (D.D.C. 2005).
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1835
ranges in the natural gas market.
243
The U.S. Commodity Future Trading
Commission argued that the publisher did not qualify under the privilege
because it simply provided the results of a mathematical formula rather than
making editorial judgments.
244
The court, however, held that because the
publisher took into account extramarket factors, it did not merely report
data but engaged in journalistic analysis and judgment.
245
Peters claims
that the court extended the privilege to the publisher in light of this
journalistic analysis.
246
In Tripp v. Department of Defense,
247
the court
applied the privilege to a writer for a military publication.
248
The court said
that interviewing individuals is “an activity which is a ‘fundamental aspect’
of investigative journalism.”
249
Thus, Peters asserts that the federal case
law illustrates investigative reporting as something that involves more than
the mere dumping of documents.
250
Peters, Clark, and Barnette assert that WikiLeaks does not engage in the
type of investigative reporting that the case law describes.
251
Rather,
WikiLeaks solicits sources to supply leaked material, which it then
publishes and disseminates to the public.
252
Stories and their corresponding
documentation are brought to WikiLeaks solely for publication.
253
Once
the document is verified for authenticity,
254
it is posted on the WikiLeaks
website with a related story.
255
The related story simply announces that the
website has published certain documents, rather than providing a narrative
or commentary on the released documents.
256
WikiLeaks then relies on the
mainstream media, such as the New York Times and the Guardian, to
publish traditional news stories analyzing the documents.
257
WikiLeaks
neither engages in extensive interviewing for news stories nor provides
meaningful context or journalistic analysis of the leaked documents.
258
243. See Peters, supra note 15, at 679.
244. McGraw-Hill, 390 F. Supp. 2d at 32.
245. Id.
246. Peters, supra note 15, at 679.
247. 284 F. Supp. 2d 50 (D.D.C. 2003).
248. See Peters, supra note 15, at 678.
249. Tripp, 284 F. Supp. 2d at 58 (quoting Mgmt. Info. Tech., Inc. v. Alyeska Pipeline
Serv. Co., 151 F.R.D. 471, 476 (D.D.C. 1993).
250. Peters, supra note 15, at 679.
251. Clark & Barnette, supra note 224, at 178; Peters, supra note 15, at 679.
252. Clark & Barnette, supra note 224, at 178.
253. Id.
254. See supra note 172.
255. Peters, supra note 15, at 680; see also supra Part I.B.3.
256. Peters, supra note 15, at 680. When WikiLeaks released the Iraq War Logs, it
posted a news story that did not feature quotes, storytelling, or analysis. Id. Although the
story is no longer available on the WikiLeaks website, it can be found on EconomicsJunkie
where it was reposted. Iraq War Crimes Surface; Probably Greatest War-Leak in Military
History, E
CONOMICSJUNKIE (Oct. 22, 2010), http://www.economicsjunkie.com/iraq-war-
crimes-surface-on-wikileaks-probably-greatest-leak-in-military-history/.
257. See Peters, supra note 15, at 683.
258. Floyd Abrams, Op.-Ed., Why WikiLeaks Is Unlike the Pentagon Papers, W
ALL ST.
J., Dec. 29, 2010, at A13 (“WikiLeaks offers no articles of its own, no context of any of the
materials it discloses, and no analysis of them other than assertions in press releases or their
1836 FORDHAM LAW REVIEW [Vol. 82
Therefore, these scholars argue that WikiLeaks fails to engage in the
elements of investigative reporting and cannot obtain the reporter’s
privilege.
259
C. Perspective Two: WikiLeaks May Claim
the Federal Reporter’s Privilege
Currently, federal courts have not addressed whether bloggers and other
new-media journalists may obtain the privilege.
260
However, using the four
principles derived from the federal case law, Benkler and Papandrea claim
that WikiLeaks has some of the characteristics needed to claim the
privilege.
261
This section explores these scholars’ arguments.
1. Because the Medium in Which News Is Disseminated Is Not
Determinative, WikiLeaks May Claim the Privilege
The Branzburg Court noted in dicta that an individual does not have to be
a member of the institutionalized press to invoke the privilege.
262
The
federal circuit courts that have ruled on this issue have also held that the
medium in which the news is circulated is irrelevant in determining whether
the privilege applies.
263
Today, journalistic activity is largely performed by
“the modern ‘lonely pamphleteer’ with a smart phone and a Twitter
feed.”
264
Thus, even though WikiLeaks is an online publication, Benkler
maintains that it may still claim the privilege.
265
equivalent.”); see also Clark & Barnette, supra note 224, at 179 (“Merely playing the role of
a Xerox machine does not constitute [journalism].”); Peters, supra note 15, at 680.
259. Clark & Barnette, supra note 224, at 179.
260. See Papandrea, supra note 30, at 568–69. One federal district court has held that an
online gossip columnist was protected from revealing his sources under the reporter’s
privilege. See Blumenthal v. Drudge, 186 F.R.D. 236, 244–45 (D.D.C. 1999). Since
Blumenthal, only one other case has considered whether an independent internet news
provider can claim protection under the First Amendment reporter’s privilege. Developments
in the Law—The Law of Media, 120 H
ARV. L. REV. 990, 1000 (2007). In O’Grady v.
Superior Court, the reporter’s privilege in the California shield statute was extended to cover
bloggers. See O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 77 (Ct. App. 2006). O’Grady
was the first state court decision to take up the issue of shield protection for bloggers.
Dougherty, supra note 26, at 313–14.
261. See, e.g., Yochai Benkler, A Free Irresponsible Press: Wikileaks and the Battle over
the Soul of the Networked Fourth Estate, 46 H
ARV. C.R.-C.L. L. REV. 311, 361–62 (2011);
Papandrea, supra note 194, at 124.
262. See supra Part II.A.1.
263. See supra Part II.A.2.
264. Dougherty, supra note 26, at 318.
265. Benkler, supra note 261, at 362. Peters, who ultimately argues that WikiLeaks
would not be able to obtain the privilege, concedes this point. See Peters, supra note 15, at
676.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1837
2. WikiLeaks Disseminates News and WikiLeaks Has the Requisite Intent
To Disseminate Information to the Public
First, WikiLeaks disseminates news.
266
Second, Benkler argues that
WikiLeaks possesses the requisite intent to disseminate information to the
public.
267
Although prior experience as a professional journalist may be
persuasive evidence of present intent to gather information for the purpose
of dissemination, it is not determinative.
268
Therefore, WikiLeaks can
possess the requisite intent because one does not have to be a professional
journalist to satisfy this element.
269
Furthermore, Benkler notes, “There
simply cannot be the remotest doubt that the entire purpose of Wikileaks is
the gathering of information for public dissemination.”
270
WikiLeaks’ goal
is to give people access to information to increase government
transparency.
271
In addition, WikiLeaks’ use of traditional media outlets to
help disseminate its information to a wider audience further demonstrates
that its goal is to disseminate information to the public.
272
Moreover, even
though WikiLeaks may possess a political agenda and have other intentions
apart from public dissemination—such as weakening governments that
operate in secrecy—WikiLeaks still possesses the intent necessary to
qualify for the privilege.
273
3. WikiLeaks Engages in Investigative Reporting
Scholars have argued that WikiLeaks is different from the traditional
media because WikiLeaks does not engage in the traditional investigative
journalistic practice of analyzing and contextualizing the information that it
publishes.
274
However, Papandrea asserts that it is inaccurate to claim that
WikiLeaks does not engage in traditional investigative journalistic
practices.
275
For example, WikiLeaks’ release of its “Collateral Murder”
video, depicting a helicopter shooting at targets below during the Iraq War,
occurred at the National Press Club, where Julian Assange extensively
commented on the video.
276
While WikiLeaks did not initially filter the
files it obtained, WikiLeaks now filters the material to determine what it
266. See Joseph S. Alonzo, Restoring the Ideal Marketplace: How Recognizing Bloggers
As Journalists Can Save the Press, 9 N.Y.U.
J. LEGIS. & PUB. POL’Y 751, 753 (2006); see
also David Carr, Journalists Go On Attack (Against One Another), N.Y.
TIMES, Aug. 26,
2013, at B1 (describing WikiLeaks as its own newsroom). Even a scholar who argues that
WikiLeaks would not be able to obtain the privilege concedes that WikiLeaks publishes
news. See Peters, supra note 15, at 676.
267. See Benkler, supra note 261, at 359–61.
268. Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987).
269. See Benkler, supra note 261, at 359–60.
270. Id. Peters, who argues that WikiLeaks would not be able to obtain the privilege,
even concedes this point. See Peters, supra note 15, at 676.
271. See Benkler, supra note 261, at 361–62.
272. See id. at 360.
273. See id. at 360–62.
274. See supra notes 229–31 and accompanying text.
275. Papandrea, supra note 194, at 124.
276. Bellia, supra note 158, at 1496–97.
1838 FORDHAM LAW REVIEW [Vol. 82
should publish.
277
In addition, WikiLeaks has sought guidance from the
government on what names and identifying information it should redact
from its materials in order to avoid harming individuals.
278
Thus,
WikiLeaks engages in investigative reporting.
D. Taking Sides: WikiLeaks May Claim the Federal Reporter’s Privilege
Under the Existing Federal Law Because WikiLeaks Engages in
Investigative Journalism
The debate on whether WikiLeaks may claim the privilege ultimately
turns on whether WikiLeaks engages in investigative journalism.
279
This
section maintains that WikiLeaks may claim the reporter’s privilege under
existing federal law because WikiLeaks engages in investigative
journalism.
280
First, Peters’s analysis of the case law defining investigative
reporting is problematic because it does not unambiguously support the idea
that investigative journalism requires analysis, interpretation, interviewing
witnesses, and in-depth research. Second, even if Peters’s analysis of the
case law interpreting the definition of investigative journalism is accurate,
WikiLeaks still engages in investigative journalism under this definition. In
Part III, this Note maintains that the characteristic of investigative
journalism is inadequate to address the complexities of today’s media
landscape.
1. The Case Law Ambiguously Defines Investigative Journalism
Peters cites five cases that he asserts further clarify the definition of
investigative journalism.
281
However, these cases do not support his
assertion that investigative journalism requires analysis and in-depth
reporting.
282
The majority of the cases that Peters cites merely describe the
published information that received the privilege as containing analysis or
involving in-depth reporting.
283
In these cases, however, the court does not
link the content’s analytic quality to its rationale for why it extended the
privilege or to the definition of investigative reporting.
284
In his discussion of Cusumano v. Microsoft,
285
Peters fails to provide
essential context to the First Circuit’s extension of the reporter’s privilege
to academics engaged in prepublication research. Peters asserts that the
Cusumano court held that the professors’ interview of a corporation’s
personnel was covered under the privilege because the interview’s sole
277. Papandrea, supra note 194, at 124.
278. Id.
279. See supra notes 225–28 and accompanying text.
280. See supra notes 274–78 and accompanying text.
281. See supra notes 233–50 and accompanying text.
282. See infra notes 285–98 and accompanying text. Also, because none of the case law
that defines the scope of the privilege discusses the scope of the privilege in the context of
leaked classified government information, it is possible that this line of case law does not
apply to the WikiLeaks case.
283. See infra notes 285–98 and accompanying text.
284. See infra notes 285–98 and accompanying text.
285. 162 F.3d 708 (1st Cir. 1998).
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1839
purpose was to gather data to be analyzed and reported.
286
Peters’s
argument emphasizes the analysis component of the court’s statement.
287
However, the court, prior to this assertion, said that it does not matter
whether the person disseminating news is a member of the media or
academia so long as he intended to disseminate information to the public at
the inception of the newsgathering process.
288
Therefore, the court held
that the academics should be entitled to the privilege because their purpose
was to report their research findings to the public.
289
The court was merely
describing the professors’ newsgathering process to include analysis, but
the fact that the professors were engaged in analysis was not the court’s
rationale for why they obtained the privilege.
290
Furthermore, the court did
not define investigative reporting in this case.
291
In Summit Technology, the court extended the privilege to an individual
who publishes reports on companies and their products.
292
The court
reasoned that the research for the individual’s reports came in part from his
speaking to other people.
293
While the court concluded that the individual
disseminated investigative information, it did not explain the rationale for
its conclusion.
294
Moreover, nowhere in this case did the court attempt to
define investigative journalism.
295
Similarly, in Blum, the Western District
of New York extended the privilege to a student journalist who engaged in
interviewing and interpretation when writing an article in the student
newspaper.
296
However, the court simply described the nature of the
student’s article and did not link these attributes to its reason for extending
the privilege.
297
In addition, the court did not attempt to characterize
investigative journalism in this case.
298
Although the two D.C. District Court cases that Peters cites provide the
strongest support for his definition of investigative journalism, these two
cases still fail to create a standard for investigative journalism that excludes
journalists who neither provide analysis nor conduct in-depth research. The
McGraw-Hill court characterized journalistic analysis as something more
than “simply reporting data,”
299
but nowhere in its opinion did the court
mention investigative journalism specifically.
300
In Tripp, the court said
286. See supra notes 235–36 and accompanying text.
287. See supra notes 235–36 and accompanying text.
288. Cusumano, 162 F.3d at 714.
289. See id. at 714–15.
290. See id.
291. See id. at 708.
292. Summit Tech., Inc. v. Healthcare Capital Grp., Inc., 141 F.R.D. 381, 384 (D. Mass.
1992).
293. Id.
294. See id.
295. See Summit Tech., 141 F.R.D. 381.
296. See supra notes 239–40 and accompanying text.
297. See Blum v. Schlegel, 150 F.R.D. 42, 42 (W.D.N.Y. 1993).
298. See id.
299. U.S. Commodity Futures Trading Comm’n v. McGraw-Hill Cos., 390 F. Supp. 2d
27, 32 (D.D.C. 2005).
300. Id. at 27.
1840 FORDHAM LAW REVIEW [Vol. 82
that interviewing individuals is a fundamental aspect of investigative
journalism; however, the court never said that interviewing individuals was
a determinative aspect of investigative journalism.
301
Thus, the case law on
the definition of investigative journalism is ambiguous, and Peters fails to
establish that analysis, interpretation, and in-depth research are necessary
components of investigative journalism.
2. Even If Investigative Journalism Requires More than the Mere Dumping
of Documents, WikiLeaks Still Engages in Investigative Journalism
Furthermore, even if the case law supports Peters’s definition of
investigative journalism, WikiLeaks still engages in investigative
journalism under Peters’s definition and therefore qualifies as a reporter
under the current scope of the privilege.
302
WikiLeaks engages in the type
of investigative journalism that Peters describes is necessary to obtain the
privilege.
303
When WikiLeaks receives a document, it undertakes
investigations to determine whether the document is authentic.
304
Although
the exact process for determining a document’s authenticity is unknown,
WikiLeaks says that it researches—through both traditional and electronic
methods—possible motives and opportunities for forgery.
305
Also,
WikiLeaks engages in editorial judgments when it filters the documents that
it receives to determine which documents to publish.
306
Moreover, at times,
WikiLeaks consults with the government to redact the names of individuals
who could be harmed through the documents’ publication.
307
In addition,
although not highly analytical, WikiLeaks publishes a short statement along
with its published document.
308
While the statement is similar to a press
release, it still entails some editorial judgment and interpretation.
309
Furthermore, WikiLeaks spokesmen have engaged in more extensive
commentary on their documents to the general public offline.
310
Therefore,
Wikileaks would qualify as a reporter under the current law.
III.
RECONCEPTUALIZING THE REPORTER’S PRIVILEGE
The current law on the scope of the federal reporter’s privilege is
inadequate to address the complexities of today’s media landscape.
311
The
discussion in Part II exemplifies these inadequacies. Part II illustrates that
courts have failed to clearly define “investigative journalism,” which is
301. See supra note 246 and accompanying text.
302. See supra Part II.C.3.
303. See supra Part II.C.3.
304. See supra note 172.
305. See supra note 172.
306. See supra note 277 and accompanying text.
307. See supra note 278 and accompanying text.
308. See supra notes 253–56 and accompanying text.
309. See supra notes 253–56 and accompanying text.
310. See supra notes 275–76 and accompanying text.
311. See generally, e.g., Dougherty, supra note 26; Jones, supra note 17; Neinas, supra
note 128; Papandrea, supra note 30; Stone, supra note 28.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1841
particularly problematic in the current media landscape.
312
In addition, the
question of whether WikiLeaks qualifies for the privilege is based merely
on whether courts believe that WikiLeaks is engaged in investigative
journalism.
313
This distinction is futile because it does not fully relate to
the purposes of the privilege.
314
The required characteristic of investigative
journalism does not fully ensure the free and robust flow of information to
the public or the press’s independence.
315
WikiLeaks serves an important
function in disseminating news regardless of whether it engages in
“investigative journalism.”
316
Because of these shortcomings, scholars
have proposed new policies to address the reporter’s privilege in light of
new media, such as WikiLeaks.
317
This Part outlines three different policy
proposals and ultimately advocates for a statute that provides for a qualified
privilege, the scope of which is determined by the source’s expectations,
where the reporter presents the source’s expectations in court on behalf of
the source.
A. Policy Proposals To Address the Privilege’s Shortcomings
To more adequately address the reporter’s privilege in the contemporary
media landscape, scholars have proposed new legal policies.
318
First, this
section discusses scholars’ arguments on whether Congress or the Supreme
Court should determine the privilege’s scope. Second, this section presents
three different policy proposals: Jones’s anonymous speech rights
approach, Stone’s source-based approach, and Papandrea’s presumption of
the privilege for all individuals who disseminate information with a few
narrow exceptions.
1. Institutional Considerations: Should Congress or the Courts Determine
the Scope of the Reporter’s Privilege?
The majority of scholars and commentators believe that Congress, rather
than the judiciary, should determine the scope of the reporter’s privilege for
four main reasons.
319
First, courts have had over four decades to clearly
delineate the scope of the privilege; however, the boundaries of the
privilege remain inconsistent and unclear.
320
Despite having ample
opportunity to hear a reporter’s privilege case, the Supreme Court has
refused to grant certiorari to a reporter’s privilege case since Branzburg in
312. See supra notes 216, 221 and accompanying text; Part II.D.1.
313. See supra notes 225–28 and accompanying text.
314. See supra Part I.A.1.
315. See supra Part I.A.1.
316. See Papandrea, supra note 194, at 121 (explaining that leaks serve a vital function in
exposing reprehensible government practices).
317. See generally, e.g., Dougherty, supra note 26; Jones, supra note 17; Neinas, supra
note 128; Papandrea, supra note 30; Stone, supra note 28.
318. See supra note 317 and accompanying text.
319. See, e.g., Lee, supra note 215, at 675–77; Neinas, supra note 128, at 225; Stone,
supra note 28, at 48. But see McCraw & Gikow, supra note 155, at 508 (explaining that the
judiciary, rather than Congress, should define the scope of the privilege).
320. Neinas, supra note 128, at 225.
1842 FORDHAM LAW REVIEW [Vol. 82
1972.
321
Second, determining who qualifies for the privilege is a difficult
policy question that requires the factfinding ability of legislatures.
322
Third,
the Supreme Court cannot determine who is a reporter under the privilege
as a matter of First Amendment interpretation because the idea of the Court
defining or licensing the press is against constitutional traditions.
323
Fourth,
because judicial decisionmaking is often tied to the facts of the particular
case in question, it is difficult for courts to formulate a uniform social
policy.
324
On the contrary, other scholars argue that courts should define the
privilege for two main reasons.
325
First, political compromise is required in
legislative channels, which often inhibits the best policy from being
passed.
326
Second, because Congress has demonstrated its unwillingness to
confront the executive on national security matters, the executive branch
will direct the policy.
327
Thus, the President might largely control the
content of the statute and it might not undergo adequate congressional
investigation before it is passed.
328
2. Policy Proposals
This section discusses three scholars’ policy proposals to reconceptualize
the reporter’s privilege in light of its current weaknesses.
329
All of the
proposals address the problem that occurs when defining the scope of the
privilege through the definition of a reporter. The proposals in Part
III.A.2.a and III.A.2.b address this shortcoming by focusing on the qualities
of the source rather than the qualities of the reporter. The proposal in Part
III.A.2.c addresses this shortcoming by broadly defining who qualifies as a
reporter under the privilege.
a. Jones’s Approach: Anonymous Speech Rights in the
Confidential Source Context
RonNell Anderson Jones asserts that courts should replace the reporter’s
privilege with an anonymous speech rights approach in the confidential
source–reporter scenario.
330
Jones claims that the most fundamental
321. Id. at 236–37.
322. Lee, supra note 215, at 677.
323. Stone, supra note 28, at 47.
324. Lee, supra note 215, at 677.
325. See McCraw & Gikow, supra note 155, at 508.
326. See id.
327. See id.
328. See id.
329. These policy proposals apply to the reporter’s privilege generally and not solely to
the privilege in the context of WikiLeaks.
330. Jones, supra note 17, at 1226. The confidential source–reporter scenario refers to
the situation where a reporter publishes information obtained from a source who wishes to
remain anonymous (the scenario that typically would implicate the reporter’s privilege). The
anonymous speech rights approach is also discussed in Jocelyn Hanamirian’s Note. See
Jocelyn V. Hanamirian, Note, The Right To Remain Anonymous: Anonymous Speakers,
Confidential Sources and the Public Good, 35 C
OLUM. J.L. & ARTS 119, 134–39 (2011).
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1843
shortcoming of the reporter’s privilege is that the reporter has been at the
center of the constitutional inquiry, which has complicated the doctrine and
created an impractical test.
331
In the newsgathering context, the source
itself should be entitled to protection under the anonymous speech doctrine
for confidential statements made to reporters.
332
Jones argues that analyzing confidential source cases using sources’
anonymous speech rights rather than reporters’ privilege rights will improve
the doctrine for three main reasons.
333
First, focusing on sources’
anonymous speech rights eliminates the need to define a reporter under the
privilege.
334
The task of defining a reporter has now become extremely
complicated because of technological changes in newsgathering and
dissemination.
335
Second, a doctrine based on anonymous speech rights
enables courts to abandon a speculative investigation into the contribution
the press makes to public dialogue in order to determine what degree of
privilege is necessary to ensure such continued contribution.
336
Instead,
this approach draws upon the clearly defined legal doctrine of anonymous
speech.
337
Third, the anonymous speech rights approach acknowledges
other First Amendment values that can be reinforced through the
confidential source dynamic, such as the source’s individual liberty.
338
The anonymous speech doctrine originally rests on the Supreme Court’s
decision in Talley v. California.
339
In Talley, the petitioner distributed
unsigned pamphlets promoting a boycott of merchants who he believed sold
goods manufactured by companies that had discriminatory hiring
practices.
340
When the petitioner was charged with violating a local
ordinance that prohibited the distribution of anonymous pamphlets, he
challenged that ordinance’s constitutionality under the First Amendment.
341
331. Jones, supra note 17, at 1225–26.
332. Id. at 1260.
333. Id. at 1226.
334. Id.
335. Id. at 1239.
336. Id. at 1226. The Branzburg Court noted that it remains “unclear how often and to
what extent informers are actually deterred from furnishing information when newsmen are
forced to testify before a grand jury. . . . [E]vidence fails to demonstrate that there would be
a significant constriction of the flow of news to the public” in the absence of the reporter’s
privilege. Branzburg v. Hayes, 408 U.S. 665, 693 (1972).
337. Jones, supra note 17, at 1226.
338. Id. One goal of the First Amendment is to provide for individual autonomy and self-
fulfillment. See Thomas I. Emerson, Toward a General Theory of the First Amendment, 72
Y
ALE L.J. 877, 879–81 (1963) (describing the “individual self-fulfillment” theory that man
“finds his meaning and his place in the world” through the development of the powers of
thought and expression, and that suppression of expression is therefore “an affront to the
dignity of man, a negation of man’s essential nature”). Anonymous speech rights advance
the First Amendment’s individual liberty goals because they protect individuals from
retaliation and their ideas from suppression in the face of opposition. See Jones, supra note
17, at 1252–53. This protection allows a speaker to ensure that readers will not prejudge his
message simply because they like or dislike its source, which directly benefits the individual
liberty of the source itself. See id. at 1253–54.
339. 362 U.S. 60 (1960); Jones, supra note 17, at 1249.
340. Talley, 362 U.S. at 60–62; Jones, supra note 17, at 1251.
341. Talley, 362 U.S. at 60–62.
1844 FORDHAM LAW REVIEW [Vol. 82
The Supreme Court held that the ordinance was unconstitutional because
individuals are free to withhold their identity when they speak.
342
The First
Amendment must protect anonymous distribution of information to ensure
that certain information will be disseminated.
343
The Supreme Court reaffirmed its protection of anonymous speech rights
in McIntyre v. Ohio Elections Commission.
344
In McIntyre, the Court held
that a citizen had a constitutional right to distribute pamphlets at a public
meeting that were signed “Concerned Parents and Tax Payers” rather than
with the citizen’s own name.
345
The Court held that speaking anonymously
is “an honorable tradition of advocacy and of dissent.”
346
Thus, the goals
of anonymous speech rights overlap with the major objectives of the
reporter’s privilege: ensuring the free flow of information and reinforcing
democratic self-governance.
347
Jones asserts that a confidential source in the reporting context is not
different from speakers in other contexts who wish to convey information
anonymously.
348
The dynamic between a confidential source and a reporter
is similar to other dynamics that occur between anonymous speakers and
other modes of communication.
349
Thus, the reporter’s source should be
entitled to protection under the anonymous speech doctrine for statements
he makes to a reporter in confidence.
350
Anonymous speech rights in the reporting context could be enforced in
two ways.
351
First, as a protected speaker, the source could assert his own
right in court.
352
Second, reporters and the news organizations that employ
them may use third-party standing to assert their sources’ anonymous
speech rights.
353
In recent years, courts have exercised their discretion to
allow third-party standing “‘whenever a practical impediment makes it
difficult for a right-holder to assert her own rights and some relation exists
between the right-holder and the party asserting third party standing.’”
354
342. Id. at 65.
343. Jones, supra note 17, at 1251.
344. 514 U.S. 334, 357 (1995). Talley and McIntyre are regarded as the core cases on
anonymous rights. Jones, supra note 17, at 1254.
345. Jones, supra note 17, at 1252.
346. McIntyre, 514 U.S. at 357.
347. Jones, supra note 17, at 1250–53; see also supra Part I.A.1.
348. See Jones, supra note 17, at 1259–60.
349. See id. at 1260–61; see also supra notes 339–47 and accompanying text.
350. See Jones, supra note 17, at 1259–60.
351. See id. at 1266–67.
352. Id. at 1266.
353. Id.
354. Id. (quoting Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-
Party Standing, 113 H
ARV. L. REV. 1321, 1359–60 (2000)). Third-party standing, the civil
procedure that describes when one party can file a lawsuit on behalf of another party, is
generally prohibited. See 1 C
AROLE L. SCOTTI ET AL., CYCLOPEDIA OF FEDERAL PROCEDURE
§ 2.14h (3d ed. Cum. Supp. 1984). Although the rule against third-party standing is not
mandated in Article III of the Constitution, it is justified by prudential concerns. See id. Yet,
courts have granted exceptions to this principle against third-party standing in certain
circumstances, one of which is where it would be difficult for persons to present their rights
before the court. Id.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1845
In the reporting context, those conditions are clearly satisfied because an
anonymous source would not want to reveal his identity by asserting his
own rights in court, and the reporter, as a vehicle for the source to
disseminate information, has a relationship with the confidential source.
355
The use of third-party standing in this context differs from its usual use.
356
Third-party standing is most often used when a plaintiff asserts that a single
application of a law injures him and impinges on the rights of identifiable
third persons.
357
However, one case, decided by the Middle District of
Pennsylvania, allowed third-party standing in a similar context to the
confidential source–reporter scenario.
358
The court held that a newspaper
had third-party standing to assert the anonymous speech rights of
anonymous commenters who had posted to the newspaper’s online
forum.
359
b. Stone’s Approach: Privilege Based on the Source’s Expectations
Rather than adopt the anonymous speech rights doctrine to the
confidential source–reporter scenario, constitutional law scholar Geoffrey
Stone maintains the privilege mechanism but suggests that the scope of the
privilege should be based on the qualities of the source.
360
The privilege
belongs to the person whose communication society wants to encourage,
361
and therefore the privilege belongs to the source rather than the reporter.
362
A reporter is merely acting as the source’s agent when he invokes the
355. See Jones, supra note 17, at 1266. However, Jones also acknowledges a grant of
third-party standing in this context could be difficult to implement because it might be
invoked in other contexts and therefore create the potential for a larger number of
subpoenaed individuals to refuse to provide information because the information was
conveyed to them by a speaker who requested to remain anonymous. Id. at 1267 n.297.
356. See supra notes 353–55 and accompanying text.
357. Fallon, supra note 354, at 1359.
358. See Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d 782, 789 (M.D. Pa. 2008).
359. See id. In Enterline, the commenters in question had responded to a local
newspaper’s coverage of a sexual harassment suit filed by a nurse against her former
employer. Id. at 783. The nurse subpoenaed the newspaper for the identification of the
commenters to possibly use them as witnesses in her case. Id. The newspaper moved to
quash the subpoena for requesting information protected by the First Amendment and the
state’s reporter’s shield statute. Id. at 783–84. Instead of using the reporter’s privilege to
withhold the speakers’ identities, the court focused on the commenters’ right to speak
anonymously. Id. at 784. The court found that the newspaper met the three requirements to
warrant third-party standing: (1) a practical obstacle for a rightholder to assert his own
rights; (2) a sufficient injury-in-fact to satisfy the Article III case-or-controversy
requirement; and (3) the expectation that the third party can zealously present the interests of
the third party. See id. at 786. First, the court noted the practical difficulties for the
anonymous commenters to assert their own anonymous speech rights. Id. at 785–86.
Second, the court found an injury to the newspaper because preventing such assertion of
anonymous speech would hurt the newspaper’s online forums, thereby reducing reader
interest and advertising revenue. Id. at 786. Third, the court held that the newspaper would
be a zealous advocate of the anonymous commenters’ rights. Id.
360. Stone, supra note 28, at 50–51.
361. Id. at 42.
362. Id. at 50.
1846 FORDHAM LAW REVIEW [Vol. 82
privilege.
363
Thus, Stone asserts that the focus of the privilege’s scope
should not be whether the reporter meets certain characteristics.
364
Instead,
the privilege’s scope should be based on the source’s characteristics.
365
The privilege should be most concerned with the source’s expectations
rather than the recipient of the information’s credentials or qualities.
366
The
source should be protected whenever: (1) he makes a confidential
disclosure to an individual believing that the individual regularly
disseminates information to the general public; and (2) his purpose is to
disseminate the information to the general public through that individual.
367
Thus, Stone’s approach is based on a desire to expand the privilege’s scope
beyond traditional journalists, while also keeping courts away from the
difficult question of who qualifies as a reporter.
368
However, Papandrea
critiques this element of Stone’s proposal because Stone fails to explain
how a court would determine the source’s intent when that source’s identity
is supposed to be unknown and protected.
369
Moreover, Stone asserts that the privilege should be absolute.
370
Because
the privilege’s purpose is to encourage sources to disclose information to
the public, a qualified privilege creates uncertainty in the privilege’s
application that works against this goal.
371
The only narrow exception to
the absolute privilege would be when the source’s disclosure is itself an
unlawful act.
372
In this circumstance, courts should apply a balancing test
based on the leak’s contribution to public debate.
373
If the unlawful leak
discloses information of substantial public value, then the privilege will be
upheld.
374
363. Id.
364. Id. at 51.
365. See id.
366. Id.
367. Id.
368. Papandrea, supra note 30, at 582.
369. Id.
370. See Stone, supra note 28, at 52–53.
371. Id. at 53.
372. Id. at 54. Stone, however, is unclear regarding whether he believes that information
obtained from a confidential source about an imminent national security threat can be an
exception to an absolute privilege. See id. at 53–54. In this context, he claims, the source
might not be willing to disclose such information without an absolute privilege. Id. at 53.
Therefore, Stone asserts that while an imminent national security threat scenario is
seemingly a compelling one in which to break the privilege, this breach of the privilege may
actually be counterproductive. Id.
373. See id. at 56.
374. Id.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1847
c. Papandrea’s Approach: Presumptive Right to the Privilege for Those
Who Disseminate Information to the Public with an Exception
for Imminent National Security Threats
Papandrea asserts that the history of the privilege demonstrates that the
medium of communication should not determine whether the privilege
should apply.
375
Throughout the history of the privilege, state legislatures
have constantly had to decide whether to expand the scope of the privilege
beyond traditional newspaper reporters to journalists working in magazines,
radio, and television.
376
Thus, rather than basing the scope on the definition
of a reporter, the scope should be based on the privilege’s underlying
purpose: increasing the amount of information available to the public while
also making sure that those who disseminate information do not become an
arm of the government or private parties.
377
Because the privilege has a
broad goal, it should cover a broad range of individuals.
378
Anyone who
contributes information to the public domain and intends the general public
to read the information should be presumptively entitled to the privilege.
379
Papandrea proposes one exception to this broad privilege for imminent
threats to national security.
380
The basis for the national security exception
is that in these circumstances the public’s interest in the information to
protect against national security threats greatly outweighs the public’s
interest in encouraging anonymous sources from coming forward.
381
Scholars have criticized the imminent national security exception as too
expansive and deferential to the government.
382
The government might
exploit the imminent national security exception when the press leaks
important government information, even though such disclosures are not
imminent threats to warrant the exception.
383
Judges further enforce this
government tactic, as they are often wary of acting against the government
when it proclaims that the country’s national security is threatened.
384
375. Papandrea, supra note 30, at 519.
376. Id.
377. Id.
378. See id. at 519–20.
379. Id. at 585.
380. Id. at 520. Also, Papandrea asserts two more exceptions to the privilege: (1) when
the subpoena is directed at someone who witnesses a criminal or tortious activity; or
(2) when the subpoena is directed at someone engaged in publication solely to avoid a
subpoena. Id. These two exceptions are outside the scope of this Note.
381. Id. at 589–90.
382. See Davidson & Herrera, supra note 124, at 1312.
383. Id. For example, this was seen in the Pentagon Papers and the George W. Bush
Administration’s warrantless wiretapping program. Id.
384. See id.
1848 FORDHAM LAW REVIEW [Vol. 82
B. Advocating for a Qualified Privilege Based
on the Source’s Expectations
This section advocates for a new reporter’s privilege policy: a qualified
privilege based on the source’s characteristics.
385
The first subpart of this
section asserts that the reporter’s privilege should be addressed through
congressional statute. The second subpart advocates for defining the
privilege’s scope using the source’s expectations rather than the qualities of
the reporter. The third subpart claims that the privilege should be qualified
to accommodate two circumstances in which the public’s interest in the
confidential source’s identity is greater than the public’s interest in
promoting the free flow of information and an independent press. The
fourth subpart discusses whether WikiLeaks would be able to claim the
privilege under this new policy.
1. Federal Statute
The reporter’s privilege should be reformed through a federal statute
rather than through the courts. For over four decades, the courts have
consistently failed to create a uniform and clear standard.
386
Currently,
there is a circuit split regarding the very existence of the privilege.
387
The
five circuits that have addressed the scope of the privilege have failed to
sufficiently and clearly define key terms in that standard, such as
investigative journalism.
388
Moreover, the Supreme Court—which has the
ability to address these inconsistencies and inadequacies in the lower
courts’ holdings—has not taken a reporter’s privilege case since 1972.
389
The Supreme Court’s single decision on the privilege gave rise to the
myriad problems discussed in this Note.
390
Furthermore, Congress’s ability
to extensively research this issue is essential to adequately defining the
scope of the reporter’s privilege.
391
Unlike the courts, Congress can consult
a wide range of policy groups and members of the media industry.
392
Scholars who believe that courts are best equipped to define the scope of
the privilege present two reasons to support their view.
393
However, both
of the reasons are flawed. First, scholars assert that political compromise,
which thwarts the formulation of the best policy, is necessary to pass a bill
in Congress.
394
However, it is unclear whether political compromise in fact
inhibits the formulation of the most effective policy. Such compromise
might in fact create the most effective policy. Also, judges have their own
385. This policy proposal applies to the reporter’s privilege generally and not only to the
privilege in the context of WikiLeaks.
386. See supra note 320 and accompanying text.
387. See supra Part I.A.3.
388. See supra notes 221, 281–301 and accompanying text.
389. See supra note 321 and accompanying text.
390. See supra note 21 and accompanying text.
391. See supra note 322 and accompanying text.
392. See supra note 322 and accompanying text.
393. See supra notes 326–28 and accompanying text.
394. See supra note 326 and accompanying text.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1849
biases and agendas that can inhibit an adequate policy from being reached.
Second, scholars assert that the president will control the policy regarding
the privilege.
395
Because Congress usually will not confront the executive
branch on such matters, these scholars assert that the statute will not
undergo adequate congressional investigation before it is passed.
396
While
this might have been true generally throughout history, the president’s
current ability to control policy in Congress is questionable. Furthermore,
because the Department of Justice—which ultimately is under the
president’s control—would be involved with the bill’s enforcement,
397
the
president’s involvement could strengthen its implementation and
enforcement. Thus, Congress should pass a statute creating a reporter’s
privilege and defining its scope.
2. Privilege Based on the Qualities of the Source
This Note advocates for an approach that defines the scope of the
privilege through the source’s expectations. The reporter will then assert
these expectations to the court on behalf of the source through third-party
standing. Thus, this Note promotes Stone’s approach and also takes into
account the major shortcoming of Stone’s approach: the failure to explain
how courts could determine the source’s intent when the source’s identity is
supposed to be protected.
398
Under the First Amendment, properly
interpreted, sources should not be deterred from giving information to the
public to increase the free flow of information.
399
Thus, the privilege
should be based on qualities of the source rather than the qualities of the
reporter.
400
For a reporter to obtain the privilege (and for the source’s
identity to be protected) under this proposal: (1) the source must make a
confidential disclosure to the reporter believing that the reporter
disseminates information to the general public; and (2) the source’s purpose
must be to disseminate the information to the general public through the
reporter.
401
Because the source cannot directly assert his interests in court as his
identity would be revealed,
402
the court should determine the source’s
purpose in revealing the information to the reporter through the reporter.
403
To obtain the privilege, the reporter will assert the source’s expectations on
behalf of the source through the procedural mechanism of third-party
standing.
404
Although third-party standing has been met with some
395. See supra notes 327–28 and accompanying text.
396. See supra notes 327–28 and accompanying text.
397. See C
ONG. BUDGET OFFICE, ESTIMATE OF THE FREE FLOW OF INFORMATION ACT OF
2013, at 2 (2013).
398. See supra notes 368–69 and accompanying text.
399. See supra notes 30–35 and accompanying text.
400. See supra notes 361–65 and accompanying text.
401. See supra note 367 and accompanying text.
402. See supra note 377.
403. See supra notes 353–55 and accompanying text.
404. See supra notes 353–55 and accompanying text.
1850 FORDHAM LAW REVIEW [Vol. 82
resistance in federal courts
405
and has not been commonly applied in this
scenario,
406
the ability for a reporter to meet the requirements for third-
party standing in the abstract,
407
as well as a court’s grant of third-party
standing in a similar context,
408
supports the potential for third-party
standing to be used here.
This policy improves the current standard on the scope of the privilege in
three main ways. First, this policy eliminates the need to define “reporter”
under the privilege, which has become extremely difficult given the rise of
citizen journalism.
409
Second, because this policy eliminates the need to
define “reporter,” it creates a more timeless standard that will not need to be
updated when the nature of the media changes in the future.
410
Third, this
approach creates a more inclusive standard that moves away from a focus
on traditional journalism towards a more adequate reflection of the current
media landscape.
411
Reporters need not engage in traditional notions of
“investigative journalism” to assert the privilege under this policy.
412
The
medium in which the reporter publishes his or her information is not
relevant.
413
Although the policy that this Note proposes achieves the goals of Jones’s
and Papandrea’s proposals, it does not endorse either of these proposals.
Jones replaces the reporter’s privilege with an anonymous speech rights
approach to protect anonymous sources.
414
Jones’s anonymous speech
proposal brings unnecessary complexity and change to the reporter’s
privilege standard because it introduces the anonymous speech rights
doctrine to the scenario that traditionally implicates the reporter’s privilege.
The law on anonymous speech rights is separate from the law on the
reporter’s privilege and has its own standards and case law history.
415
The
goals that Jones wishes to achieve can be reached through Stone’s source-
based proposal without bringing a new legal doctrine to the issue and
replacing the privilege mechanism.
416
405. See supra note 354.
406. See supra note 355–358 and accompanying text.
407. First, a reporter could establish that a practical impediment exists for the source to
assert his own expectations in court because the source wishes to remain anonymous. See
supra note 359. Second, a reporter could establish an injury-in-fact to satisfy the case-or-
controversy requirement because preventing reporters from asserting their sources’ interests
in this context would harm the reporter’s ability to perform his job and therefore result in an
injury to the reporter. See supra note 359. Third, a reporter seemingly would be an advocate
for his source because the reporter’s interests would be aligned with the source’s interests.
See supra note 359.
408. See supra notes 358–59 and accompanying text.
409. See supra notes 334–35 and accompanying text.
410. See supra notes 334–35 and accompanying text.
411. See supra note 368 and accompanying text.
412. See supra note 368 and accompanying text.
413. See supra note 368 and accompanying text.
414. See supra Part III.A.2.a.
415. See supra notes 339–50 and accompanying text.
416. See supra notes 333–38, 409–13 and accompanying text.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1851
Likewise, the policy advocated in this Note achieves Papandrea’s goals
but more adequately reconceptualizes the privilege.
417
This Note does not
support Papandrea’s proposal because her proposal uses the same
framework as the courts and proposed congressional statutes that have
addressed the scope of the privilege by attempting to define “reporter.”
Although Papandrea asserts that her policy is not based on the definition of
a reporter but rather on the purpose of the privilege,
418
she still uses the
qualities of the person who is disseminating the information or the
“reporter” to determine the privilege.
419
Because Papandrea still focuses on
the qualities of the reporter, her proposal has the potential to create the same
problems that currently exist.
3. Qualified Privilege
This Note advocates for a qualified privilege. Because the privilege
should encourage individuals to disclose information to the public, there
should be only two narrow exceptions to the privilege: (1) when the
source’s disclosure is itself an unlawful act; and (2) in the case of an
imminent threat to national security.
420
Both of these exceptions are based
on the belief that there are some circumstances in which the public’s
interest in confidential information and its source are far greater than
encouraging leakers to disclose information.
421
When the source’s disclosure is itself unlawful, the court should apply a
balancing test based on the leak’s contribution to public debate versus the
harm caused by the leak’s disclosure.
422
In these circumstances, the
privilege will be upheld only if the unlawful leak discloses information that
is of substantial public value.
423
The court should determine whether an
unlawful leak is of substantial public value on a case-by-case basis looking
at the totality of the circumstances surrounding the disclosure’s effects.
424
The court, for example, should look to the following factors: potential
physical harm to individuals, potential direct harm to U.S. national security,
and exposure of unlawful government action.
425
On one side of the
spectrum would be information of little value to public debate, such as the
publication of identities of covert CIA agents operating in foreign
countries.
426
On the other side of the spectrum would be information of
substantial value to public debate, such as the government’s use of unlawful
interrogation tactics, human rights violations, or the number of
417. See supra notes 377, 411–13 and accompanying text.
418. See supra note 377 and accompanying text.
419. See supra notes 377–79 and accompanying text.
420. See supra notes 372–74, 380–81 and accompanying text.
421. See supra note 381 and accompany text.
422. See supra notes 373–74 and accompanying text.
423. See supra note 374 and accompanying text.
424. A discussion of the myriad scenarios that could arise under this exception is outside
the scope of this Note.
425. See Geoffrey R. Stone, WikiLeaks, the Proposed SHIELD Act, and the First
Amendment, 5 J.
NAT’L SECURITY L. & POL’Y 105, 108 (2011).
426. See Stone, supra note 28, at 56.
1852 FORDHAM LAW REVIEW [Vol. 82
noncombatant deaths during a war.
427
On this side of the spectrum, the
disclosure would not directly jeopardize U.S. national security, the lives of
U.S. soldiers or other government officials, or innocent lives generally.
428
In addition, the reporter’s privilege should not be granted when the
source’s identity is relevant to an imminent national security threat.
429
Although some scholars have criticized the imminent national security
exception as having the potential to become too expansive,
430
this reason
alone is not enough to eliminate the exception—especially when innocent
lives could be at stake.
While this proposal will have some costs, such as depriving the factfinder
of relevant evidence
431
and revealing classified information,
432
this policy
seeks to balance these costs with the benefits of such disclosures. The
increased classification of government documents post-9/11 has decreased
government transparency.
433
In recent years, leaks of classified
government documents have been central to exposing government abuses
and unlawful actions during a time of government secrecy.
434
For example,
such leaks exposed the treatment of prisoners in Abu Ghraib and the
National Security Agency’s warrantless wiretapping program.
435
Thus,
leaks serve as a check on government power.
436
The policy proposed in
this Note seeks to encourage the leaking of information that will expose
government abuses. However, the policy advocated in this Note also
recognizes that leaks of classified documents should not be encouraged in
all circumstances. Certain information needs to remain classified—such as
information that, if disclosed, could directly harm U.S. national security and
the lives of U.S. government officials or innocent civilians—and the people
have the right to obtain the identity of leakers who make such unlawful
disclosures.
4. Applying the Policy Presented in This Note to WikiLeaks
WikiLeaks would most likely be able to claim the privilege under this
new policy. The sources who leak documents to WikiLeaks most likely:
(1) make confidential disclosures to WikiLeaks believing that WikiLeaks
disseminates information to the public; and (2) leak documents so that the
information will be disseminated to the public through WikiLeaks. The
exceptions to the privilege under this new policy seem more problematic for
WikiLeaks. WikiLeaks might not be able to claim the privilege if the
disclosure of leaked information was itself unlawful or if the information
427. See id.
428. See id.
429. See supra notes 380–81 and accompanying text.
430. See supra notes 382–84 and accompanying text.
431. See supra note 31.
432. See supra notes 138–39 and accompanying text.
433. See supra notes 144–64 and accompanying text.
434. See Papandrea, supra note 194, at 121.
435. Id.
436. See id.
2014] REPORTER’S PRIVILEGE IN THE AGE OF WIKILEAKS 1853
concerned an imminent national security threat. However, if the disclosure
of leaked documents is itself unlawful, WikiLeaks would still likely be able
to obtain the privilege if the information that WikiLeaks discloses is of
substantial public value. For example, WikiLeaks would have to disclose
the identification of a source who disclosed the names of Afghan
informants to the United States, as occurred during the Afghan War Diaries
release, because this disclosure was unlawful and had the potential to be a
direct threat to the informants’ lives.
437
However, WikiLeaks would be
able to obtain the privilege if the unlawful leak solely revealed information
about human rights abuses and the number of noncombatant deaths in the
Iraq War, as was revealed during the Iraq War Logs.
438
Moreover,
although it seems plausible that WikiLeaks could receive information
regarding an imminent national security threat because WikiLeaks has
received classified government national security documents, WikiLeaks has
yet to make such a disclosure. Thus, WikiLeaks likely will be able to
obtain the privilege in most circumstances under this Note’s proposed
policy.
C
ONCLUSION
The current federal reporter’s privilege is rife with conflicts.
439
Even for
traditional journalists, the reporter’s privilege is unclear and inconsistent.
440
The rise of citizen journalism brings even more challenges to the privilege
because it is more difficult to define who is a reporter in today’s media
landscape.
441
The debate regarding whether WikiLeaks may claim the
privilege under the current law exemplifies the challenges that new media
brings to the reporter’s privilege.
442
Given changes in the media landscape
and the increased classification of government documents, organizations
like WikiLeaks do not seem to be going away.
443
Thus, these
inconsistencies and shortcomings should not remain unaddressed.
Congress should pass a statute to bring much needed consistency and
clarity to the reporter’s privilege. Specifically, Congress should create a
qualified privilege that is determined by examining the source’s
expectations. The reporter would assert the source’s intent in court on
behalf of the source through third-party standing. This approach would
adequately address the problem of defining who is a reporter under the
privilege, create a standard that accommodates citizen journalists, and
achieve the privilege’s overarching goals. With this new reporter’s
privilege, WikiLeaks and its successors would have a clear standard to
protect them from revealing their sources. This clear standard would
encourage WikiLeaks and organizations like WikiLeaks to continue to
437. See Peters, supra note 15, at 684.
438. See supra notes 3–4, 426–28 and accompanying text.
439. See supra Part I.A.
440. See supra Part I.A.
441. See supra Part II.
442. See supra Part II.
443. See supra Part I.B.1–2.
1854 FORDHAM LAW REVIEW [Vol. 82
disseminate leaked information to the public to expose government
abuses—contributing to public discourse, enhancing democratic self-
governance, and ultimately achieving the societal values that the reporter’s
privilege was meant to protect.