Constitution Check: Do online publishers have a right to gather news?

Lyle Denniston, our Supreme Court correspondent, looks a Senate subcommittee’s demand for information from an online publisher about how it conducts its business – and a potential First Amendment conflict that could merit the Supreme Court’s attention.

THE STATEMENT AT ISSUE:

“The Courts of Appeals are hopelessly divided on the import of the [Supreme Court’s decision in Branzburg v. Hayes in 1972] – including the fundamental question of whether a reporter’s privilege even exists under the First Amendment….The Fourth, Sixth, and Seventh Circuits have held…that no privilege exists….The majority of circuits, conversely, have understood Branzburg – correctly – to established at least a qualified privilege against investigative demands….This case presents a compelling reason for this court to reexamine the issue presented in Branzburg…in light of ever-increasing confusion arising from the scope of First Amendment protection available to online intermediary publishers.”

 – Excerpt from a document filed in the Supreme Court on Tuesday, seeking a delay of a Senate subcommittee’s subpoena to an online publisher – Backpage.com – demanding access to information about how that site screens and edits content supplied to it by someone else.  Backpage is a large publisher of classified ads, and it includes ads in its “adult section” that are being investigated by various law enforcement officials on the theory that they contribute to sex crimes. Chief Justice John G. Roberts, Jr., has temporarily blocked an investigative subpoena pending further action by the Supreme Court.

WE CHECKED THE CONSTITUTION, AND…

It is a general rule that everyone has a civic duty to cooperate when government sets out to investigate whether a crime has been committed.  But it is also a tradition that, in the interest of serving other public goals, some people are not required to reveal everything that police, prosecutors and investigators would like to learn from them.

A person’s spouse is exempt from being forced to testify against the other spouse in a criminal case; a lawyer need not reveal what a client has revealed; a religious counselor cannot be forced to tell what has been learned in confidence.

All such exemptions are known technically in the law as “testimonial privileges.”  Most of them are based in common-law traditions that date back centuries.  But such privileges also can gain support from the Constitution.   Indeed, the right under the Fifth Amendment not to be forced to give criminal evidence against one’s self is known as the “privilege against self-incrimination.”

For a long time, decades at least, newspaper reporters and editors have been trying to establish something called the “reporter’s privilege.”  It is also referred to as the “news-gathering privilege.”  Usually, what that means is that courts, grand juries, and other investigative entities should not have the power to force a journalist to reveal the sources of news. The theory behind it is that journalists need to rely upon confidential sources in order to do their work, and being forced to give away a source’s identity is bound to dry up such sources.  Reporters, in fact, have gone to jail rather than give up their sources.

Obviously, because journalism is a profession that has the special protection of the First Amendment’s Free Press Clause, recognition of a news-gathering or reporter’s privilege under that Clause would make it very strong.  The Supreme Court last discussed this idea some 44 years ago, in the case of Branzburg v. Hayes. 

That decision involved three journalists – newspaper reporters Paul Branzburg and Earl Caldwell and television reporter Paul Pappas – who had been summoned before separate grand juries investigating crime and urban violence, to tell how and from whom they got stories they had written.  Each resisted, claiming a “reporter’s privilege” to keep their sources to themselves.

The Supreme Court split 5-to-4, and the result actually went against the claim.  But this is one of those split decisions by the court that can easily be misunderstood.  One of the five Justices who supported the outcome was Justice Lewis F. Powell, Jr.   While he agreed that these reporters should have to testify, he wrote separately to insist that the ruling was actually very narrow and that, at least in some measure, there should be a “testimonial privilege” for news-gathering under the First Amendment.  It should be judged, he said, case by case.

News reporters and editors have never given up that cause.  And now the Supreme Court is being asked to reconsider the idea, in the Digital Age, the age of the Internet.  Some of the biggest players on the Web – like Google, YouTube, Craigslist, and Yelp – get much of their content from someone else, not their own staffs.  In effect, the computer-using public is their staff of news-gatherers.  But each of them, at least to some degree, exercises some form of editorial oversight of the content that appears on their sites.

And their mode of operation has made them quite vulnerable to law enforcement demands.  In a new case developing at the Supreme Court, the Justices were told that “online publishers increasingly find themselves the targets of government efforts to stifle unpopular speech they host,” and that they are often facing “scattershot fishing expeditions” by various law enforcement and investigative officials or entities.  Some of their challengers, it was suggested, are even trying to shut down sites completely.

The case involves Backpage.com, a large publisher that puts on the Internet what are called “classified ads” in the newspaper business.  A part of Backpage’s operations includes an “adult section,” where sexually explicit material regularly appears.  That has been the target of investigators, including – for the past year – a Senate subcommittee that is looking into “sex trafficking” on the Internet.

That subcommittee has issued a broadly worded subpoena to Backpage and its CEO, Carl Ferrer.  The subcommittee won enforcement of its subpoena in two lower courts in recent weeks, and Ferrer and his team of First Amendment-specializing lawyers has moved on to the Supreme Court.  At this point, they are seeking simply a delay of the subpoena’s enforcement, so that they can pursue further challenges to it in lower courts and, ultimately, the Supreme Court.

It may shortly become clear whether their challenge has any realistic prospect of a sympathetic response from the Supreme Court.  So far, Chief Justice John G. Roberts, Jr., has temporarily blocked the subpoena for only a few days, awaiting further legal filings.