Lee Levine Speaks on Reporter’s Privilege

By: Stephen Edwards, 2L

Staff Writer

Renowned media lawyer and scholar Lee Levine visited Washington & Lee School of Law on March 20 to give a lecture titled “Litigating the Reporter’s Privilege: Then and Now.” Levine is the founding partner of Levine Sullivan Koch & Schulz, a powerhouse media and First Amendment law firm in Washington, D.C. He attended Yale Law School, where, among other honors, he was a classmate of our beloved Professor Murchison.

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Source: http://www.c-span.org| Lee Levine spoke on C-SPAN regarding the anniversary of New York Times v. Sullivan.

In his lecture, Levine discussed the legal debate over whether the First Amendment provides a privilege to news reporters that shields them from being compelled to reveal sources before a court. The controlling source of law on this question is a 1972 Supreme Court decision, Branzburg v. Hayes. That case was a consolidated decision of a group of cases involving reporters who had written stories about interesting but undeniably criminal activity—one had befriended drug dealers and witnessed the conversion of “marihuana” into hashish; another had gained access to a secret meeting of the Black Panthers. These reporters were subpoenaed to grand jury hearings by prosecutors hoping to indict the persons depicted in the stories. The reporters refused to testify, claiming a First Amendment privilege not to divulge confidential sources.

The Branzburg Court roundly rejected the reporter’s claim of privilege. The Court stated that the interest of society in ensuring that law enforcement has the capacity to address crime—in this case, through grand jury subpoenas—trumps any claim of privilege that might be read into the text of the First Amendment. In the words of the Court, “The [First] Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons.”

Levine recalled that the initial reaction of press organizations to Branzburg was utter dismay. The Supreme Court had left them in the lurch, or so they thought. Along came James Goodale, general counsel for the New York Times. According to Levine, Goodale locked himself in a room with the Branzburg decision for three days and later emerged with a plan to save the reporter’s privilege. This plan had two components. First, it emphasized that the Branzburg Court had weighed the claim of a reporter’s privilege against the importance of grand juries having broad investigatory power to uncover crime. This left the door open to application of a reporter’s privilege in other contexts, such as civil proceedings, or criminal trials, as opposed to grand jury proceedings.

Second, Goodale’s reading gave great weight to Justice Powell’s “enigmatic” concurring opinion in Branzburg, which seemed to suggest that courts should balance the First Amendment interest in news-gathering against the law enforcement interest in gathering information pertinent to criminal activity on a case-by-case basis.

This ingenious reading of Branzburg carried the day in many federal and state courts for decades. Goodale, it seemed, had saved the reporter’s privilege, with media lawyers around the country successfully using his arguments to protect their clients’ confidential sources.

But this story does not end, however, without another twist. In 2003, Richard Posner, sitting on the Federal Court of Appeals for the Seventh Circuit, issued an opinion that rebuked the many courts that had adopted Goodale’s reading of Branzburg. In McKevitt v. Pallasch¸ Judge Posner opined that it had become fashionable to “simply ignore Branzburg,” and to “audaciously declare that Branzburg actually created a reporter’s privilege.” Posner’s opinion in McKevitt has received much attention, gaining traction with a number of courts hearing cases where a reporter’s privilege is asserted.

Levine recounted his experience litigating a reporter’s privilege case before a judge who had clearly been persuaded by McKevitt. Levine said he expected this case to be “routine,” in accordance with Goodale’s reading of Branzburg. But to his surprise, the judge questioned him intensely, asking specifically, “What makes your case different from Branzburg, where the Court declined to recognize a reporter’s privilege?”

The trend started by Posner’s opinion in McKevitt is likely to continue, said Levine. Going forward, media lawyers around the country will have to contend with judges whose sentiments veer closer to Branzburg as originally understood. At present, I can report that the fate of the First Amendment reporter’s privilege is anything but certain.

 

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