In Documentary Decision, Second Circuit Garbles 'Reporter's Privilege'

A strange voice on the telephone: Something is happening to me, please tell my story.

When I was a reporter, this happened to me quite often. Now I'm a lawyer. In this country, at least at the federal level, we don't handle the tension between the law and journalism well.

The tension is on display in a recent case called Chevron v. Berlinger, decided last month by the U.S. Court of Appeals for the Second Circuit. In Berlinger, one of the brainiest judges on a brainy circuit decided that Joseph Berlinger, a respected documentary filmmaker, is not a truly "independent" reporter, because his work began with a call like the one I described. It was a bad decision, and one that will cause mischief down the road.

The case concerns "reporter's privilege." The "privilege" refers to a conditional exemption for journalists from demands to turn over evidence to courts conducting lawsuits and trials.

Court orders to testify or turn over evidence are particularly a problem for reporters. Often they have spent months or years amassing information and documentation about a story. Sometimes they have promised to keep sources' identities secret to protect them from being fired or prosecuted, or even killed. To allow the government or a private party to rummage through their notes could do damage to their work, and to their sources.

The issue first came before the Supreme Court back in the 1970s in a case called Branzburg v. Hayes, in which a number of reporters contested federal grand jury subpoenas for information about stories they had written (one concerned marijuana dealers and two were about the Black Panther Party). The reporters claimed that the First Amendment should shield them from revealing their confidential sources.

The Court ambiguously disagreed. Four Justices wrote that there is no privilege at all; three wrote that the First Amendment should protect the reporters because the government hadn't shown a "compelling interest" in the information; one wrote that reporters had blanket immunity from forced disclosure; the ninth, Justice Powell, wrote that privilege should be judged case by case, striking a balance between the needs of law enforcement and those of the First Amendment -- a balance, he thought, that favored disclosure in these cases. For those scoring at home, that's five votes against the reporters and a different five votes (Powell plus the dissenters) saying that there is probably some kind of privilege out there yet to be defined.

Sometimes they [journalists] have promised to keep sources' identities secret to protect them from being fired or prosecuted, or even killed

Branzburg, then, didn't even clearly answer the question the court was asked -- when can a grand jury demand testimony about a reporter's confidential sources? Lower federal courts have struggled with even murkier questions: What protection does a reporter have for information gathered without a promise of confidentiality? And what happens when the demand for disclosure comes from private parties suing each other about something the journalist has covered? The Second Circuit, in a case called Gonzales v. NBC, offered some protection for journalists when private litigants seek their information just because it may help their case. There is no blanket exemption, the court said, but courts should limit disclosure. The opinion noted that unlimited disclosure might hobble working journalists:

[W]holesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compliance, and could otherwise impair its ability to perform its duties--particularly if potential sources were deterred from speaking to the press, or insisted on remaining anonymous, because of the likelihood that they would be sucked into litigation.

The Gonzales opinion was by Judge Pierre N. Leval, one of the circuit's stars. It shows a sophisticated awareness of what compelled disclosure entails. That makes what happened in Berlinger all the more distressing. And that brings us back to Crude.

The dispute at the heart of the film stretches back to 1964, when Texaco entered a joint venture to exploit oil reserves in the Oriente region of Ecuador. Eventually the joint venture was joined by Petroecuador, the state oil company, which bought Texaco out in 1992.

In 1993, a group of Ecuadorian plaintiffs sued Texaco in federal court in New York. The plaintiffs, who include indigenous people living in Oriente, allege that waste from the oil production has spread cancer and other environmental diseases among the villages. For nine years, the company demanded that the case be transferred to Ecuadorian court. But by the time they won, Ecuador had a new government hostile to multinational companies. Texaco, meanwhile, had acquired Texaco, and became the defendant. The case began to go badly for Chevron -- and Ecuadorian officials brought criminal charges against the company and two of its lawyers for their alleged role in covering up pollution of the Oriente.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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