Supreme Court's ruling in Branzburg provides foundation for jailing of journalists in criminal matters

From freepress.net

Five of the six American journalists who have been jailed in the 2000s, had their freedom taken away based largely on a U.S. Supreme Court case styled Branzburg v. Hayes, 408 U.S. 665 (1972).

The sixth journalist is me, and my freedom was taken away for five months based on . . . nothing. No U.S. law supports it. In fact, a long line of U.S. Supreme Court and state high-court cases specifically state that a preliminary injunction in a defamation case is an unlawful prior restraint under the First Amendment--and yet, I spent five months in the Shelby County, Alabama, jail after Republican political figure Rob Riley and lobbyist Liberty Duke sought my arrest because I allegedly had violated a preliminary injunction in their defamation case, a civil matter that involved no criminal allegations of any kind.

Never mind that the material in question was not found to be defamatory at trial. That's because, under specially appointed judge Claud Neilson, there was no trial--only a hearing, with no discovery, no cross-examination, almost no evidence, no jury . . . well, you get the idea. It was, in fact, a joke--as I stated to the court that day.

What separates my case from the other five that involve incarceration of journalists? Numerous differences come to mind, but the main one is this: Branzburg was the primary governing law in the other cases, and while I don't agree with the finding in Branzburg, it means that the other incarcerations probably were legal. Mine clearly was not legal, and even knowledgeable legal analysts who differ with me politically, agree on that.

The key issue in the other five cases involved efforts by journalists to protect confidential sources in criminal matters. Here is the core finding from Branzburg:

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

I disagree with court actions that led to the incarcerations of editor/publisher Timothy Crews (2000), free-lance writer Vanessa Leggett (2001), broadcast journalist Jim Taricani (2004), New York Times reporter Judith Miller (2005), and free-lance blogger/videographer Joshua Wolf (2006). But the Branzburg case provided legal precedent that probably made those rulings lawful.

Rob Riley

While my incarceration clearly was unlawful, litigants like Rob Riley and Liberty Duke (and judges like Claud Neilson) can try to take advantage of an area of law that is more muddled than it should be. The Reporters Committee for Freedom of the Press (RCFP) published a 2002 article, in the wake of the Vanessa Leggett case, showing that Branzburg leaves many questions unanswered--even in criminal cases. From the article, titled "Branzburg Revisited? Landmark ruling limiting reporter’s privilege turns 30, but release of jailed writer sparks call for review":

The jailing of a Houston book author for 168 days drew the attention of the national media and free-speech groups because of the oddity of a writer spending more than five months in jail when she was not even accused of a crime. . . .

Could (Vanessa) Leggett's case compel the U.S. Supreme Court to reconsider a muddled 30-year-old ruling on whether a reporter has a First Amendment right to keep sources confidential, especially in criminal cases?

The question is a sensitive one among journalists. The Supreme Court held in its 1972 decision in Branzburg v. Hayes that reporters had no privilege to refuse to appear and testify before state or federal grand juries. But a concurring opinion in the case, coupled with dissents from four justices, has been construed to give journalists at least a qualified privilege to withhold information in other circumstances. The fractured opinion left lower courts to figure out when and how the reporter's privilege should apply, and those courts have not decided the issues consistently.

The Supreme Court never again accepted a case that required it to clarify when a reporter has a privilege to withhold information. Press groups recognize the imperfection of Branzburg, but they worry that this court's conservative justices would erode reporters' rights if those justices took another look at the issue.

The U.S. Supreme Court has not looked at a case similar to Branzburg since that article was written almost 13 years ago, so the rights of reporters to protect confidential sources in criminal matters remain unclear. But the law in my case, a civil matter involving an unlawful prior restraint, is crystal clear. Writes Ken White, a conservative lawyer at the Popehat blog:

The order underlying Shuler's arrest is unconstitutional.

There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: equity and the First Amendment

Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies — like monetary damages — are unavailable or inadequate. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

Then there is the matter of the First Amendment. Writes White:

Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):

Liberty Duke

"For many years it has been clearly established that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971), quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). “Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1329, 96 S.Ct. 237, 254, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976), prior restraints are particularly disfavored:

'A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.'

Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.

Rob Riley has a law degree from Yale, but he obviously must have skipped class when important constitutional issues were being presented.