First Amendment & Media Law
Degan, Blanchard & Nash represents publishers, reporters, authors, broadcasters and media entities, including online providers, in a number of different matters. Our practice includes counseling clients prior to publication or broadcast on legal issues regarding their investigations and articles. We advise clients on how to prevent claims of defamation and how information may be communicated to, or obtained from, third parties, or shielded from access by third parties. In addition, we defend against claims of defamation and invasion of privacy lawsuits. We also strive to preserve access to public records and courtrooms on behalf of our clients. Furthermore, in keeping up to date with issues arising out of social media, we are able to work with our clients to help safeguard against issues of privacy, employment-related concerns, and potential litigation.
A major concern for many clients is the need to defend against criminal, civil and grand jury subpoenas. Journalists are entitled to a qualified privilege. The United States Department of Justice has created guidelines to protect journalists from the excessive use of subpoenas. The guidelines provide that the Department of Justice should make all reasonable attempts to obtain the sought-after information from alternative sources before considering issuing a subpoena to a journalist. In addition, the guidelines require that federal prosecutors attempt to negotiate with the journalist and explain the specific reasons the information being sought is needed. In criminal cases, the prosecutor should have reasonable grounds to believe, based on information obtained from non-media investigation, particularly when the information bears directly on establishing guilt or innocence. In civil cases, the prosecutor should have reasonable grounds to believe, based on non-media sources, that the information sought is essential to the successful completion of the litigation in a case of substantial importance. Whether a criminal or civil case, the subpoena should not be used to obtain peripheral, nonessential, or speculative information. Moreover, unless there are exigent circumstances, the use of subpoenas should be limited to the verification of published information.
Significantly, forty states and the District of Columbia have shield laws in place designed to protect journalists against being forced to disclose confidential information and sources in state court. The protection offered by shield laws varies by jurisdiction. Some laws protect journalists in civil cases only. Some laws only protect journalists from revealing confidential sources, but not other information. Our attorneys are prepared to challenge subpoenas issued to journalists and will work diligently to obtain the best possible results to protect their information and confidential sources.