Reporters Must Have the Right to Keep Sources Confidential

Daniel Scardino

Vanessa Leggett, an aspiring true-crime writer, was researching a murder in Texas. As part of her investigation, she extensively interviewed one of the suspects and spoke with many other people involved in the investigation. When the prosecution began to face difficulties in building a case, they tried to enlist Leggett's services as an informant. When she refused, they subpoenaed her before a grand jury. She refused to reveal her sources and was jailed for contempt. In the following selection, Daniel Scardino explores the implications of this case for the press. He concludes that the right of journalists to keep their sources secret is essential to a free and effective press. Therefore, the Leggett case is a blow to press freedom.

Scardino is an associate at the law firm Jackson Walker in Austin, Texas.

Source

Daniel Scardino, "Vanessa Leggett Serves Maximum Jail Time, First Amendment–Based Reporter's Privilege Under Siege," Communications Lawyer, vol. 19, Winter 2002. Copyright © 2002 by the American Bar Association. Reproduced by permission.

Primary Source Text

When a federal grand jury was convened to investigate the possibility of filing federal murder charges against Houstonian Robert Angleton, the city braced itself for another media frenzy. In 1998, Robert Angleton had been acquitted in state court of murdering his wife, socialite Doris Angleton, who was found shot to death on April 16, 1997, in her River Oaks home. The state court trial had been a media circus, replete with a rumored millionaire bookie, his ne'er-do-well brother, a messy impending divorce, and a jailhouse confession and suicide.

However, the person who received the most attention was not directly involved in the murder. Vanessa Leggett, a part-time college instructor and aspiring true crime writer, stole the limelight when she refused to turn over to the federal grand jury information that she had gathered during her four-year investigation. On July 19, 2001, Leggett was held in civil contempt as a recalcitrant witness. She went to jail the next day and was not released until January 4, 2002, when the grand jury ended its Angleton investigation without handing down a single indictment.

Leggett was incarcerated longer than any reporter in U.S. history for refusing to disclose research collected in the course of newsgathering. As is usual in states like Texas with no shield laws,¹ neither the district court nor the Fifth Circuit showed compassion for Leggett's professional integrity and loyalty to her confidential sources. She was forced to serve the maximum term for contempt of court, which was the shorter of either the duration of the grand jury investigation or eighteen months.

But the most disconcerting aspect of the Leggett case is that neither court adequately investigated the actions of the U.S. Department of Justice (DOJ) or balanced the interests of the First Amendment against the government's need for Leggett's research. Indeed, there may have been no need for her information at all. On January 8, 2002, four days after Leggett's release, the U.S. attorney empanelled another grand jury to investigate Robert Angleton. It was able to hand down an indictment in sixteen days without subpoenaing Leggett or her records.

1. laws that protect journalists from being forced to reveal confidential sources

Damaging Blow to Reporter's Privilege

Although this scenario has played out between the media and law enforcement agencies many times before, Leggett's contempt citation and the Fifth Circuit's holding represent an especially damaging blow to the reporter's privilege because the court held that the First Amendment did not apply to her case at all. Although the Fifth Circuit settled in dicta [an opinion about a matter not on trial] the issue of whether Leggett was a journalist and thus able to claim the reporter's privilege, it held that the case did not turn on that question. Rather, the Fifth Circuit made the sweeping pronouncement in Leggett's case and an earlier reporter's privilege case that the Constitution does not offer any testimonial or material privilege for reporters in the context of a grand jury or even a criminal proceeding.

The Fifth Circuit's recent decisions are in contrast with those of the U.S. Supreme Court, which held in Branzburg v. Hayes that bad-faith grand jury subpoenas intended to disrupt reporters' relationships with their sources violate the First Amendment. In Leggett's case, the court overlooked attempts by law enforcement agencies to use the subpoena power to coerce Leggett to become a confidential informant and turned a blind eye to the policy, embodied in the First Amendment, favoring the dissemination of ideas in furtherance of the public's right to know. The Branzburg holding specifically proscribed such law enforcement tactics as violating the First Amendment.

Precisely because Texas has no shield law, Leggett's experience provides a useful context in which to analyze the state of the First Amendment–based reporter's privilege. Leggett has petitioned the U.S. Supreme Court for certiorari [review of the case]; if granted, the Court may fundamentally change the way that most lower courts have applied the First Amendment to subpoenas for the media and their records.

From Ink Slinger to Snitch

Leggett's story began at the arraignment of two suspected murderers and co-conspirators in Houston's Harris County Courthouse. Robert Angleton and his brother Roger were charged with murdering Robert's wife, Doris, after Roger was found in Las Vegas with typewritten notes outlining the murder and a tape recording of two men plotting it. Robert was a Houston millionaire and reputed bookie. Because Robert and Doris's marriage was unraveling, police believed that Robert wanted his wife dead so that she could not reveal the details about his lucrative bookmaking operation during the divorce proceedings.

In the midst of the publicity surrounding the state murder trial, Leggett obtained access to Roger in the Harris County jail through his attorney and recorded over forty hours of interviews. Shortly thereafter, Roger was found dead in his jail cell with a suicide note confessing to the murder and absolving Robert of any involvement in the crime. Eager for evidence to bolster its case against Robert, the Houston district attorney's office subpoenaed Leggett's taped interviews with his now-deceased brother. Leggett initially resisted the subpoena, fearing that her hard work in investigating the crime and getting what she considered an exclusive might be compromised. Eventually, she agreed to comply with the subpoena after the Houston district attorney assured her that (1) only those portions of the interview that were admissible and relevant would be disclosed during the trial, and (2) all copies of the tapes would be returned after the trial. After reviewing the tapes, the district attorney apparently found no new revelations and did not use the tapes at Robert's trial. The trial resulted in an acquittal on August 12, 1998, largely because of the exculpatory portions of the suicide note and a botched Houston police investigation, which revealed that Robert was actually a longtime police informant.

FBI Pressures Leggett

After the acquittal, the Houston prosecutor on the case, Chuck Rosenthal, apparently enlisted his wife, an FBI agent, to pursue Robert on various racketeering, tax evasion, bookmaking, and federal murder-for-hire charges. The FBI began its efforts to seek information from Leggett in July 2000. Although they knew that she was writing a book about the murder and the state trial, federal investigators approached Leggett about working as a confidential informant. The FBI offered Leggett a contract, promising money for her research but stipulating that the FBI would have final say before she could publish her book or otherwise disseminate her material. When Leggett declined, the U.S. attorney handed her a grand jury subpoena on the spot. Leggett complied with the subpoena and appeared before the grand jury on December 7, 2000, where she revealed information but not the names of her sources.

In June 2001, the U.S. attorney served Leggett with a second federal grand jury subpoena that compelled not only her testimony but also the surrender of all research, both originals and copies. Full compliance with that subpoena would have meant that Leggett would have to relinquish all of her research with no guarantee of recovering it. On July 6, 2001, the U.S. District Court for the Southern District of Texas denied Leggett's motion to quash the subpoena as an unconstitutional infringement of the First Amendment. Leggett unsuccessfully argued before Judge Melinda Harmon that the subpoena as issued would prevent her from continuing to work.

On July 18, 2001, the government served Leggett with another, identical subpoena. After a hearing on Leggett's second motion to quash, Judge Harmon issued a contempt order holding that there was absolutely no privilege allowing reporters to withhold any information, confidential or otherwise, in criminal cases. Judge Harmon dismissed as irrelevant any concerns that the DOJ had failed to follow its own guidelines regarding the issuance of subpoenas to the media in its dealings with Leggett.

Writer Goes to Jail

When Leggett went to jail two days later, the media's focus turned from the bizarre murder of Doris Angleton to the even stranger events that resulted in Leggett's incarceration. The press did not unanimously support Leggett's invocation of the reporter's privilege. Although some argued for her release on First Amendment grounds, others argued that the reporter's privilege only protects those associated with major media organizations, not freelancers like Leggett. But most commentators agreed that the DOJ's actions seemed unnecessarily harsh. Why did the DOJ want to deprive Leggett of the ability to work on her book? Wasn't this an unconstitutional prior restraint? Should the DOJ have negotiated with Leggett, as the Houston prosecutor did earlier, so that she could retain control over her material but at the same time give the prosecutors what they wanted?

At least one journalist speculated that the FBI and the U.S. attorney might have wanted to force Leggett to become an informant by threatening to deprive her of her material, ostensibly to prevent disclosure of their own bungled investigation. Leggett's attorney argued that the subpoena was just a fishing expedition. Because Robert Angleton was later indicted by another grand jury without the benefit of Leggett's research, the DOJ apparently did not need her information, lending even more suspicion to its motives. Nevertheless, one thing was clear: with the sheer breadth of media coverage buzzing about the Angleton murder and the dozens of reporters investigating Robert Angleton's past, the DOJ singled out Leggett. She was the only reporter to be subpoenaed in the case.

Some alleged that Leggett attempted to overcome the impossible by claiming the reporter's privilege, impossible because the federal courts, much less the state of Texas, have never recognized an absolute First Amendment–based reporter's privilege. Recent cases suggest that the courts are in the process of limiting the privilege's application even further. Indeed, the history of the reporter's privilege is, for the most part, one of defeat. . . .

Branzburg: Did They or Didn't They?

In Branzburg v. Hayes, decided two years after the DOJ guidelines were instituted, the U.S. Supreme Court ruled that a reporter who was working on an ongoing series about the Black Panthers could not refuse to appear before a grand jury that was investigating their allegedly criminal activities. The majority declined to agree with one reporter's assertion of an absolute First Amendment privilege. The Court specifically held that there was no privilege that allowed reporters to refuse to appear before a grand jury or to refuse to answer questions about crimes that they may have witnessed. Citing the public good derived from effective law enforcement and the fact-finding purpose of the grand jury, Justice [Byron] White, writing for the majority, opined that any incidental burden on newsgathering created by compelled testimony before a grand jury was too remote to protect and that no special showing needed to be made before a grand jury could subpoena the press.

However, the majority opinion specifically held that the First Amendment somewhat protected a journalist's cultivation of confidential sources as a form of gathering information. The majority opinion held that "grand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. . . . We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth." But this seemingly narrow protection in the context of a grand jury proceeding was supported only by a minority of the Court. Justice [Lewis] Powell, although signing the majority opinion, wrote his own concurrence in which he agreed with the dissenters and advocated a balancing of First Amendment versus law enforcement interests similar to that required by the DOJ guidelines. In terms of the reporter's privilege, Justice Powell's concurrence is the key to Branzburg:

The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safe-guarding their sources. . . . Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the Court on a motion to quash and an appropriate protective order may be issued. 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.

Powell, to be absolutely clear, pointed out that "[Justice White's majority opinion does] not hold . . . that state and federal authorities are free to annex the news media as an investigative arm of the government." The fact that he advocated the use of a balancing test even in the context of a grand jury made the narrow language of the majority suspect. With an unusual majority made up of four justices plus Justice Powell concurring, the actual holding of Branzburg has been questioned from the beginning. Justice [Potter] Stewart has called it a case that "rejected a reporter's privilege by a vote of 4 ½ to 4 ½."

What Did the Court Mean?

Justice Powell's concurrence went further than the majority's limited holding. Specifically, where the majority indicated that a journalist could only quash a subpoena issued in bad faith, Powell would bar good-faith subpoenas seeking remote and tenuous information. Early commentators were confused by the fact that Powell was the deciding vote and seemingly did not agree with the limited holding of the majority. One even surmised that Branzburg was a five-four victory for the press, with Justice Powell plus the four dissenters agreeing on the existence of a qualified reporter's privilege in the context of the grand jury.

Despite the initial confusion, the Powell balancing test, which took into account the relevance and materiality of the information and the ability to otherwise obtain it, eventually became the standard framework for a First Amendment inquiry into media subpoenas. Confusing as it may be, the Branzburg decision is the foundation for judicial recognition of a First Amendment–based reporter's privilege. . . .

The Reporter's Dilemma

With the current state of the eroded reporter's privilege, the reporter's dilemma is a palpable one. The ethics of their profession prevent reporters from divulging information obtained in confidence. Reporters are marked as unreliable by sources if they reveal confidences, inhibiting their ability to gather and disseminate accurate and breaking news. If reporters reveal confidential sources, they may be liable in damages to the source for breaking promises of confidentiality. It is a Catch 22: reporters are put in jail if they refuse to reveal their sources and information; if they do reveal their sources, they are monetarily liable for breaching a contract of confidentiality.

Many have dismissed Leggett's lack of cooperation as obstinance or a clever marketing ploy by a savvy young crime writer. But that characterization ignores her significance as a symbol of the press's function as a guardian of democracy. Leggett's investigative efforts to uncover what really happened, including the truth about the Angleton murder, the botched state prosecution, and the ties of Houston's power elite to the crime, represent the true "fourth estate" function of the press in a democracy as the purveyors of systematic transparency. It is precisely this function that most commentators agree the First Amendment was designed to facilitate.

In the context of a grand jury subpoena, the proper inquiry should be whether the actions by federal law enforcement officials to subpoena a reporter are designed to harass and disrupt the reporter's relationship with his or her confidential sources. If the answer is yes, the reporter should not be compelled to testify; if no, the court should balance the competing First Amendment interest with law enforcement's interest in effective prosecution.

In this country, we say we will set ten guilty men free to prevent even one innocent man from going to jail. It is alarming that the courts are not willing to recognize a First Amendment check against prosecutorial misconduct to protect innocent journalists. The deep-rooted prejudices that courts have against the press must sometimes be overcome to protect greater constitutional guarantees. With a proper balance, it is possible for the First and Sixth Amendments to co-exist.