I. BOTH THE FIRST AMENDMENT AND FEDERAL COMMON LAW RECOGNIZE A QUALIFIED PRIVILEGE BY JOURNALISTS TO RESIST CRIMINAL PROCESS.
Both the first amendment and federal common law recognize a qualified privilege by journalists to resist criminal process. This brief first analyzes both the Supreme Court’s holding and reasoning in Branzburg v. Hayes, 408 U.S. 665 (1972), and its interpretation by lower circuits for the reporter’s privilege under the First Amendment. The brief then examines Fed. R. Evid. 501 and the evolution of federal common law related to the reporter’s privilege.
The Tenth Circuit reviews a district court’s order granting a motion to quash a grand jury subpoena for an abuse of discretion. See In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (10th Cir. 2010). “A district court abuses its discretion when it commits an error of law.” United States v. Commanche, 577 F.3d 1261, 1266 (10th Cir. 2009). Whether the First Amendment or the federal common law recognizes a qualified privilege by journalists to resist criminal process is a pure question of law. The Tenth Circuit reviews purely legal questions de novo. See In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990).
A. The District Court Correctly Recognized a Qualified Reporter’s Privilege Arising under the First Amendment That Protects Against Disclosure of Confidential Source Information in a Criminal Context.
The district court correctly held that, “based on Silkwood, . . . the Tenth Circuit would recognize a qualified privilege by journalists to resist criminal process.” R. at 3. This holding is consistent with both the Supreme Court’s reasoning in Branzburg and with the interpretation of Branzburg by a vast majority of circuits.
1. The Supreme Court, by way of Justice Powell’s concurring opinion in Branzburg, recognizes a constitutional, qualified reporter’s privilege for confidential sources in a criminal case.
The constitutional reporter’s privilege is rooted in Justice Powell’s decisive concurring opinion in Branzburg, 408 U.S. at 709 (Powell, J., concurring). In Branzburg, the Supreme Court upheld, in a 5-4 decision, contempt convictions for journalists based on their failure to testify before grand juries. As the fifth and deciding vote for the majority opinion, Justice Powell wrote a concurring opinion emphasizing the narrow basis of the majority holding. In so doing, Justice Powell clarified that the majority’s decision in Branzburg did not in any way preclude journalists from asserting in any case, civil or criminal, a “claim to privilege” that is rooted in “constitutional rights with respect to the gathering of news or in safeguarding [reporters’] sources.” Id. at 709. Justice Powell further stated that courts are required to judge such assertions of privilege “on [their] facts” and on “a case-by-case basis,” by balancing the “vital constitutional and societal interests” of freedom of the press, on the one hand, and the obligation of citizens...