The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Sines v. Yiannopoulos, decided Wednesday by Judge Katherine Polk Failla (S.D.N.Y.), several people—all plaintiffs in a lawsuit over injuries at the Charlottesville Unite the Right—are trying to compel Milo Yiannopoulos "to disclose the identity of a confidential source who [Yiannopoulos] says has relevant documents" related to Richard Spencer. Yiannopoulos has said "that his source had played clips of responsive audio and video files, and shown him a screen where he could see that additional files existed." But Yiannopoulos is refusing to testify about his source, based on the journalist's privilege, which Second Circuit precedent recognizes.
The court describes the privilege, which is qualified, not absolute:
"The privilege may be invoked by an individual "involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press." However, to invoke the privilege, an individual must be acting in "the role of the independent press" when "collecting the information in question." Furthermore, "the talisman" for invoking "the journalist's privilege is intent to disseminate to the public at the time the gathering of information commences."
Once established, the federal journalist's privilege is a qualified one and may be overcome. However, the protection accorded by the privilege "is at its highest when the information sought to be protected was acquired by the journalist through a promise of confidentiality." To protect the "important interest of reporters in preserving the confidentiality of [their] sources," the Court may override the journalist's privilege and order disclosure "only upon a clear and specific showing that the information is: [i] highly material and relevant, [ii] necessary or critical to the maintenance of the claim, and [iii] not obtainable from other available sources."
The court concluded that Yiannopoulos is protected by the privilege, though the defendants may yet be able to overcome it:
Movants argue that [Yiannopoulos] cannot assert the journalist's privilege because he was gathering information and cultivating his source in order to pursue a personal feud with Richard Spencer, and was thus not acting in the role of an independent journalist. [Yiannopoulos] replies that at the time he "acquired the identity of" his source, he was employed as a professional journalist at Breitbart, and, further, that he "learn[ed] the identity of the source in the course of gathering or obtaining news"—not in pursuing a grudge against Spencer.
The factual record is both thin and slightly muddled. The parties focus their arguments on [Yiannopoulos]'s intent at the time he obtained his confidential source, as well as his role while attending an "afterparty" at which the source allegedly showed relevant recordings to [Yiannopoulos]. [Yiannopoulos] states that "when [he] acquired the identity of the source and listened to materials and became aware of various facts in the course of reporting, [he] was at the same time a senior salaried professional reporter at" Breitbart.
Breitbart is a controversial website with an overt bias, "[b]ut the touchstone is not … whether the journalistic enterprise was 'unbiased'; by that standard, few, if any, daily newspapers could assert the privilege. Rather, the test is whether the enterprise intended to express its views publicly, or merely to engage in private lobbying." Breitbart does not primarily engage in private lobbying, regardless of its editorial vision or the merits of the content that it publishes.
[Yiannopoulos] asserts he was writing about white supremacy "at the time in question," making conversations with white nationalists "directly relevant to [his] daily work[.]" Thus, to the extent [Yiannopoulos] acquired his source and/or learned about the relevant documents while employed by Breitbart, he has sufficiently invoked the journalist's privilege, even if he later developed a personal grudge against Spencer.
Movants further assert that the afterparty at which [Yiannopoulos] was purportedly shown the relevant files happened after [Yiannopoulos] resigned from Breitbart in February 2017. The timeline is not entirely clear, so the Court next addresses the possibility that [Yiannopoulos] cultivated his source and/or obtained relevant information after leaving Breitbart. [Yiannopoulos] asserts that he was not motivated by a personal grudge at the time he cultivated his source, regardless of the timing, and further argues that he attended the afterparty "for journalistic purposes." (This assertion is supported by the fact that [Yiannopoulos] has been publishing content about white supremacist ideology since he left Breitbart, even if not for a formal media organization and even if published in an unorthodox style.)
Movants ask the Court to discredit [Yiannopoulos]'s assertion that he attended the afterparty with a journalistic intent because [Yiannopoulos] claims to have consumed significant amounts of alcohol at the party. The Court notes that the consumption of alcohol at a party does not vitiate journalistic intent. Journalists may wish to attend a party in order to gather information, or to meet and cultivate potential sources, any of which goals may be furthered by the consumption of alcohol.
Even if the Court discredits [Yiannopoulos]'s representations as to timing, the Court is not convinced that [Yiannopoulos] was motivated only out of a personal grudge against Spencer. Spencer is himself a newsworthy subject, and publishing information about him, even if tinged with personal dislike, can still be motivated by an interest to "disseminate information to the public," and to promote "debate over controversial matters." …. [Yiannopoulos]'s style of disseminating information may be confrontational and biased, but it is not wholly without journalistic content, and protecting even [Yiannopoulos]'s muckraking style protects the "public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters."