A subsequent grand jury returned an indictment without the need for Leggett's testimony. Thus, Leggett remained incarcerated until January 4, 2002, when the term of the grand jury expired, or 168 days all told - the longest period of incarceration of a contemnor-journalist in the history of the United States at that time. Without deciding whether the information sought by the grand jury was confidential or not, the court declined to reverse the district court's contempt order, which had remanded freelance writer Vanessa Leggett to custody following her refusal to produce all originals and copies of her notes and tapes of interviews regarding a celebrated Houston murder. In re Grand Jury Subpoenas, 2001 WL 940433, 29 Media L. In 2002, the Fifth Circuit reaffirmed in an unpublished decision its position that qualified First Amendment protection of journalists from subpoenas is at its nadir when brought to bear against grand jury subpoenas. Certain language in Smith, however, including its construction of Branzburg, may cloud the availability of those rights. Finally, it remains an open question whether a reporter's confidential sources or work product sought in a grand jury proceeding or criminal case are entitled to qualified protection. The law in the Fifth Circuit remains unsettled regarding whether a qualified privilege is available against a subpoena in a civil case that seeks the identity of a journalist's non-confidential sources or work product, though various dicta suggest the Fifth Circuit may not afford the journalist a privilege in those instances. Rather, the Fifth Circuit has held that the First Amendment protects journalists' non-confidential materials and sources only from criminal process issued with intent to harass. However, where a grand jury or a party in a criminal case seeks the non-confidential work product or testimony of a journalist, the Fifth Circuit recognizes no privilege. Where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party, the reporter enjoys the privilege, and the party seeking the information must demonstrate with substantial evidence that the information is relevant and not available elsewhere, and that its need for the information is compelling. The Fifth Circuit has recognized a First Amendment qualified privilege for journalists in certain classes of cases. Johnson, who contributed to a prior version of this chapter. Agreement to partially testify act as waiver? Disclosure of non-confidential source's nameģ. Disclosure of confidential source's nameī. Subpoena not overbroad or unduly burdensomeĪ. What proof of search does a subpoenaing party need to make?Ĥ. Material unavailable from other sourcesī. Substantive law on contesting subpoenasĢ. Filing an objection or a notice of intent Service of police or other administrative subpoenasĢ. Procedures for issuing and contesting subpoenasĥ. Others, including non-traditional news gatherers Published and/or non-published materialĢ. Confidential and/or nonconfidential informationį.
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