Boal Amicus

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 1 of 26 Page ID #:165
1 KATIE TOWNSEND (SBN 254321)
[email protected]
2 THE REPORTERS COMMITTEE FOR

3 FREEDOM OF THE PRESS
1156 15th Street NW, Suite 1250

4 Washington, D.C. 20005
5 Telephone: 202.795.9300
Facsimile: 202.795.9310
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7 Counsel of Record for Amici Curiae

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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Case No. 2:16-CV-05407-GHK-GJS

MARK BOAL, et al.,
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Plaintiffs,
v.
UNITED STATES OF AMERICA, et
al.,
Defendants.
BRIEF OF AMICI CURIAE

THE REPORTERS
COMMITTEE FOR FREEDOM
OF THE PRESS AND 36
MEDIA ORGANIZATIONS IN
SUPPORT OF PLAINTIFFS
EX PARTE APPLICATION
[Notice of Motion and Motion and
[Proposed] filed Concurrently
Herewith]
Date: August 29, 2016
Time: 9:30 a.m.
Judge: Honorable George H. King
Courtroom: 650
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BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
AND 36 MEDIA ORGANIZATIONS
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... ii
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4 INTRODUCTION ...................................................................................................... 1
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INTEREST OF AMICI CURIAE ............................................................................. 2
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7 ARGUMENT ............................................................................................................... 4
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I. Requiring journalists to reveal confidential or unpublished materials

undermines societys interest in protecting the newsgathering process. ............ 4
II. Boal is entitled to the protections of the reporters privilege. ...................... 8
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III. The Court should address these claims now to avoid irreparable harm to
Boal. ................................................................................................................. 15
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CONCLUSION ......................................................................................................... 20
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i
TABLE OF AUTHORITIES
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3 CASES
4 Branzburg v. Hayes, 408 U.S. 665 (1972) ........................................................... passim

5 Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970) ............................................ 5
6 California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998) ..... 2
7 Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) ..................................... 5, 10
8 Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................... 20
9 Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975) ......................................................... 1, 6
10 Grosjean v. American Press Co., 297 U.S. 233 (1936) ................................................ 5
11 Herbert v. Lando, 441 U.S. 153 (1979) ........................................................................ 6
12 In re Madden, 151 F.3d 125, 129 (3d Cir. 1998) .................................................. 10, 11
13 Jaffee v. Redmond, 518 U.S. 1 (1996) ........................................................................ 20
14 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ................................................. 14
15 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ................................... 20
16 Lovell v. Griffin, 303 U.S. 444 (1938) .......................................................................... 9
17 Minneapolis Star & Tribune Co. v. Minnesota Comr of Revenue, 460 U.S. 575
(1983) ........................................................................................................................ 5
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New York Times Co. v. Gonzales, 382 F.Supp.2d 457 (S.D.N.Y. 2005) .................... 18
New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) ................................. 18
Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014) ........................ 9
Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) ....................................................... passim
United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) ............................................. 5
von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987) ........................................ passim
STATUTES
25 10 U.S.C. 847 ........................................................................................................... 18

26 RULES
27 28 C.F.R. 50.10 .......................................................................................................... 7
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ii
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2 OTHER AUTHORITIES
3 Associated Press, Attorney General Lynch says Justice Dept. wont send reporters to
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jail for doing their job, U.S. News & World Report (Oct. 9, 2015), available at
https://perma.cc/99SA-R7LP................................................................................... 19
5 Charlie Savage, Holder Hints Reporter May Be Spared Jail in Leak, N.Y. Times
(May 27, 2014), available at http://nyti.ms/1jscnLA .............................................. 19
DOJ, Report on Review of News Media Policies (July 12, 2013), available at
http://bit.ly/1TTieSt ................................................................................................... 7
7
8 Duane D. Morse & John W. Zucker, The Journalists Privilege in Testimonial
Privileges (Scott N. Stone & Ronald S. Liebman eds., 1983)................................... 6
9
Edison Research, The Infinite Dial 2016 (2016),

available at http://bit.ly/2amwFOW........................................................................ 11
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11 Ginger Thommpson, Susie Cagle, & Lena Groeger, The Making of a Narco-Terrorist,
ProPublica (Dec. 15, 2015), available at http://bit.ly/1Yy0sq1 ............................... 12
12
Human Rights Watch & American Civil Liberties Union, With Liberty to Monitor
All: How Large-Scale US Surveillance is Harming Journalism, Law and American
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Democracy (July 2014), available at http://bit.ly/2amxaZh .................................... 20
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John Branch, Snow Fall: The Avalanche at Tunnel Creek, N.Y. Times,
http://nyti.ms/1dQ0jHo (last visited July 24, 2016) ................................................ 12
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16 John Koblin, Serial Podcast, Needing More Reporting Time, Goes Biweekly, N.Y.
Times (Jan. 12, 2016), available at http://nyti.ms/1RkMvHE ................................. 12
17
Jordan Michael Smith, The Many Faces of Mark Boal, The Nation (June 14, 2013),
available at https://perma.cc/M2KV-KSYQ ........................................................... 14
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19 Joseph Lichterman, Snapchat stories: Heres how 6 news orgs are thinking about the
chat app, NiemanLab (Feb. 23, 2015), available at http://bit.ly/1zbdnLP .............. 11
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Josh Gerstein, James Risen subpoena faces new review, Politico (Oct. 10, 2014),
available at https://perma.cc/BF76-VZKX .............................................................. 16
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22 Matt Apuzzo, Times Reporter Will Not Be Called to Testify, N.Y. Times (Jan. 12,
2015), available at http://nyti.ms/1z2niJk ............................................................... 16
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Matt Zapotosky, Former CIA officer Jeffrey Sterling convicted in leak case, The
Washington Post (Jan. 26, 2015), available at https://perma.cc/58KE-X9QY ....... 16
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25 Maureen Dowd, Wheres the Justice at Justice?, N.Y. Times (Aug. 16, 2014),
available at http://nyti.ms/1oR38qH ........................................................................ 17
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Michael Barthel, Elisa Shearer, Jeffrey Gottfried, and Amy Mitchell, The Evolving
Role of News on Twitter and Facebook, Pew Research Center (July 14, 2015),
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available at https://perma.cc/YNP3-73TP ............................................................... 11
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iii
1 Norman Solomon and Marcy Wheeler, The Government War Against Reporter James
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Risen, The Nation (Oct. 27, 2014), available at http://bit.ly/2a6rdQS .................... 17
Serial, About Serial, available at https://serialpodcast.org/about (last visited July 21,

2016 ......................................................................................................................... 12
4 Viewing the Future? Virtual Reality in Journalism, Knight Foundation (March 13,
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2016), http://kng.ht/2a9xXuu .................................................................................. 12
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INTRODUCTION
This case arises out of a threatened subpoena from a military prosecutor to
4 civilian members of the news media, Plaintiffs Mark Boal and Flakjacket LLC d/b/a
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Page 1 (collectively, Boal), for confidential or non-confidential but unpublished
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recordings made by Boal of his interviews with U.S. Army Sgt. Robert Bowdrie
8 Bergdahl. The Reporters Committee for Freedom of the Press and 36 other media
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organizations (collectively, amici) write in support of Boals Ex Parte Application
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for Temporary Restraining Order and for Order to Show Cause Why Defendants
12 Should Not Be Preliminarily Enjoined from Issuing and Enforcing Subpoena.

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The compelled disclosure of a journalists unpublished work product or
15 confidential materials has a destructive effect upon the news medias ability to gather
16 news and report on matters of public concern. Accordingly, the Ninth Circuit has
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recognized a reporters privilege against such compelled disclosure in both criminal
19 and civil proceedings alike. See Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir. 1975);
20 Shoen v. Shoen, 5 F.3d 1289, 1292, 1295 (9th Cir. 1993) (Shoen I). Amici write to
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explain the important policy reasons underpinning the recognition of the reporters
23 privilege. In addition, amici support Boals arguments that the reporters privilege
24 extends to Boal, because Boal had the intent, at the inception of the newsgathering
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process, to disseminate to the public information regarding Sgt. Bergdahls
27 disappearance from an Army outpost in Afghanistan. See Shoen I, 5 F.3d at 129394.

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1 This is important not just to establish that Boal, specifically, is entitled to protection,
2
but because as the definition of what constitutes journalism and what form it takes
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4 continues to advance at a rapid pace, established protections for journalists must
5 continue to evolve to encompass a wide variety of forms and formats. Finally, amici
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urge the Court to address Boals claims now, so that he can avoid unnecessary and
8 irreparable injury. The issuance of the subpoena to a member of the news media can
9 lead to a lengthy legal process that chills newsgathering activity, which is protected
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by the First Amendment. California First Amendment Coalition v. Calderon, 150
12 F.3d 976, 981 (9th Cir. 1998) (citing Branzburg v. Hayes, 408 U.S. 665, 681 (1972)).
13 Moreover, in this case, any proceeding to enforce the military subpoena against Boal,
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who is a civilian, would have to be brought in federal district court; accordingly, in
16 the interest of judicial efficiency and to protect Boals First Amendment rights, this
17 Court should grant Boal the relief he seeks in the instant proceeding. For these
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reasons, as well as those set forth in Boals Memorandum of Points and Authorities,
20 amici urge this Court to grant Boals Ex Parte Application.

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INTEREST OF AMICI CURIAE1
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The Reporters Committee for Freedom of the Press (Reporters Committee),
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24 ABC, Inc., American Society of News Editors, AOL Inc. The Huffington Post, The
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No counsel for a party authored this brief in whole or in part, nor did any person or
27 entity, other than amici or their counsel, make a monetary contribution to the
preparation or submission of this brief.
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1 Associated Press, Association of Alternative Newsmedia, Association of American

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Publishers, Inc., The Boston Globe, LLC, Cable News Network, Inc., California
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4 Newspaper Publishers Association, CBS Broadcasting Inc., The Center for
5 Investigative Reporting, The E.W. Scripps Company, First Amendment Coalition,
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First Look Media Works, Inc., Fox News Network LLC, Freedom of the Press
8 Foundation, International Documentary Assn., Investigative Reporting Workshop at

9 American University, Jigsaw Productions, The McClatchy Company, The Media
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Consortium, MPA The Association of Magazine Media, The National Press Club,
12 National Press Photographers Association, National Public Radio, Inc.,

13 NBCUniversal Media, LLC, New England First Amendment Coalition, The News
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Guild CWA, Newspaper Association of America, Radio Television Digital News
16 Association, Reporters Without Boarders, Serial Podcast, LLC, Society of

17 Professional Journalists, Student Press Law Center, Tully Center for Free Speech, and
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The Washington Post submit this brief in support of Boal in this matter.
Amici are media entities and organizations representing professional journalists
21 and media entities. Each of the amici, or their members, are engaged in the
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dissemination of news to members of the public. In the course of gathering news for
24 dissemination, amici or their members at times rely upon promises of confidentiality

25 to sources regarding the sources identities or certain portions of information
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provided by sources. Additionally, in disseminating news to the public, each of the

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1 amici or their members select among all of the material gathered through their
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reporting and make choices regarding what portions of that material will be
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4 disseminated and what portions will remain unpublished. Without recognition and
5 consistent application of a privilege grounded in the First Amendment to protect from
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disclosure confidential source information and unpublished materials gathered by
8 amici in the course of reporting the news, amicis ability to report on matters of
9 public concern would be significantly impaired. Accordingly, amici have an interest
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in ensuring that Boal is not required to divulge confidential or unpublished material
12 in contravention of the reporters privilege as a result of a subpoena issued in

13 connection with the court martial of Sgt. Bergdahl.
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ARGUMENT
I. Requiring journalists to reveal confidential or unpublished materials
undermines societys interest in protecting the newsgathering process.
The First Amendment guarantees a free press primarily because of the
19 important role it can play as a vital source of public information. Zerilli v. Smith,
20 656 F.2d 705, 710 (D.C. Cir. 1981) (quoting Grosjean v. American Press Co., 297
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U.S. 233, 250 (1936)); Caldwell v. United States, 434 F.2d 1081, 1084 (9th Cir.
23 1970) (quoting Grosjean, 297 U.S. at 250), revd on other grounds, Branzburg, 408
24 U.S. at 708; see also Shoen I, 5 F.3d at 1292 (noting societys interest in protecting
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the integrity of the newsgathering process, and in ensuring the free flow of
27 information to the public). The Supreme Court has held that an informed public is
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Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 10 of 26 Page ID

#:174
1 the essence of working democracy. Minneapolis Star & Tribune Co. v. Minnesota
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Comr of Revenue, 460 U.S. 575, 585 (1983). As a country, [w]e have placed our
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4 faith in knowledge, not in ignorance, and for most this means reliance on the press.
5 United States v. Morison, 844 F.2d 1057, 1081 (4th Cir. 1988) (Wilkinson, J.,
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concurring).
Courts have recognized that [f]orcing the press to breach a promise of
9 confidentiality threatens its ability in the future to perform its public function by
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impairing its ability to acquire information for publication. Chevron Corp. v.
12 Berlinger, 629 F.3d 297, 307 (2d Cir. 2011). A journalist who breaks his promise to
13 keep certain material confidential will no longer be trusted by current or future
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sources who require confidentiality of their identities or certain information as a
16 condition of their cooperation. See, e.g., Zerilli, 656 F.2d at 711; Riley v. City of
17 Chester, 612 F.2d 708, 714 (3d Cir. 1979). Similarly, requiring a journalist to
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provide the government with his or her work product or unpublished material
20 degrades the independent status of the press. Compelled disclosure of unpublished

21 material convert[s] the press in the publics mind into an investigative arm of
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prosecutors and the courts and causes journalists to be shunned by persons who
24 might otherwise give them information without a promise of confidentiality, barred

25 from meetings which they would otherwise be free to attend and to describe, or even
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physically harassed if, for example, observed taking notes or photographs at a public
5

#:175
1 rally. Shoen I, 5 F.3d at 1295 (quoting Duane D. Morse & John W. Zucker, The
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Journalists Privilege in Testimonial Privileges 47475 (Scott N. Stone & Ronald S.
3
4 Liebman eds., 1983)). For these reasons, compelling a journalist to disclose
5 confidential or unpublished material will negatively affect his or her ability to report
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future news stories, and the publics corresponding ability to receive information.
8 See Baker v. F&F Inv., 470 F.2d 778, 782 (2d Cir. 1972).
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Based on the negative impact of compelled disclosure of confidential or

unpublished materials, the Ninth Circuit applies a qualified privilege grounded in the
12 First Amendment in both civil and criminal judicial proceedings to protect

13 information acquired by a journalist in the course of gathering the news:
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Rooted in the First Amendment, the privilege is a

recognition that societys interest in protecting the
integrity of the newsgathering process, and in
ensuring the free flow of information to the public, is
an interest of sufficient social importance to justify
some incidental sacrifice of sources of facts needed
in the administration of justice.
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Shoen I, 5 F.3d at 1292 (quoting Herbert v. Lando, 441 U.S. 153, 183 (1979)
20 (Brennan, J., dissenting) (internal quotations omitted)); see also Farr, 522 F.2d at
21 46768.
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Moreover, given the news medias central role in our democracy as a critical
24 source of information for the public, the executive branch, in addition to the judiciary,
25 has recognized the strong public policy objectives behind news media independence
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and confidentiality of newsgathering materials. The U.S. Department of Justice

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1 (DOJ) has identified the essential role of a free press in fostering government
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accountability and an open society, Dept of Justice, Report on Review of News
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4 Media Policies at 2 (July 12, 2013), available at http://bit.ly/1TTieSt (DOJ Report),
5 and stated that freedom of the press can be no broader than the freedom of members
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of the news media to investigate and report the news, 28 C.F.R. 50.10(a)(1).
In 1970, the DOJ adopted guidelines governing the issuance of subpoenas by
9 federal law enforcement to members of the news media. See 28 C.F.R. 50.10 (the
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DOJ guidelines). While the DOJ guidelines do not create legally enforceable
12 rights, they reflect a powerful social contract between the government and the news
13 media. These guidelines, most recently revised in 2015, demonstrate the
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governments understanding of the importance of the constitutionally protected
16 newsgathering process, and that issuance of subpoenas and other law enforcement
17 tools now included in the policy to members of the news media will have a serious
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and negative impact on that process. DOJ Report at 2. In addition, the DOJ
20 guidelines encapsulate the governments view that tools seeking evidence from the
21 news media are an extraordinary measure and should be used only as a last
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resort. Id.; see also 28 C.F.R. 50.10(a)(3).

Thus, both judicial precedents and public policy imperatives have long
25 acknowledged the importance of protecting the integrity of the newsgathering process

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and the corrosive impact that compelled disclosure of confidential or unpublished

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1 materials can have on these activities. The nation relies on the press for information
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about the performance of the government, the military, and other institutions of
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4 significant public concern. For the reasons explained above, requiring journalists to
5 reveal confidential or unpublished materials threatens their autonomy to gather
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information and report it to the public. The reporters privilege is essential to
8 preserving the free flow of information through the press to the public and the
9 resulting benefits to American democracy.
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II. Boal is entitled to the protections of the reporters privilege.

In determining whether the reporters privilege applies to shield information in
13 a particular case, the Court must first consider the threshold legal question of whether
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the individual who seeks to invoke this privilege qualifies for protection as a
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journalist. Shoen I, 5 F.3d at 1293. In Shoen I, the Ninth Circuit adopted the
17 reasoning of the Second Circuit as stated in von Bulow v. von Bulow, 811 F.2d 136
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(2d Cir. 1987), cert denied, 481 U.S. 1015 (1987), to decide this threshold legal
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question. Id. at 129394.

In Shoen I, the Court held that [t]he test . . . is whether the person seeking to
invoke the privilege had the intent to use the materialsought, gathered or
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receivedto disseminate information to the public and [whether] such intent existed
25 at the inception of the newsgathering process. Id. at 129394 (quoting von Bulow,
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811 F.2d at 144). Thus, the Court concluded that the medium used to report the
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1 news to the public is not important to determining the applicability of the reporters
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privilege; rather, [w]hat makes journalism journalism is not its format but its
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4 content. Id. at 1293; see also Branzburg, 408 U.S. at 705 (Liberty of the press is
5 the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as
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much as of the large metropolitan publisher who utilizes the latest photocomposition
8 methods.); Lovell v. Griffin, 303 U.S. 444, 452 (1938) (The press in its historic
9 connotation comprehends every sort of publication which affords a vehicle of
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information and opinion.); Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284,
12 1291 (9th Cir. 2014) (stating that [t]he protections of the First Amendment do not
13 turn on whether the defendant was a trained journalist, formally affiliated with
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traditional news entities and that a First Amendment distinction between the
16 institutional press and other speakers is unworkable). Accordingly, in Schoen I the

17 Ninth Circuit held that an investigative book author is a journalist for purposes of
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claiming the reporters privilege. Shoen I, 5 F.3d at 1294.

Other federal circuit courts have similarly rejected the contention that one must
21 be a member of the traditional print or broadcast media or that a specific method of

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dissemination must be employed in order to claim the reporters privilege. For
24 example, even before von Bulow and Shoen I, the Tenth Circuit applied a similar test
25 to determine that a documentary filmmakerthough not a regular newsmanwas
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a journalist entitled to invoke the reporters privilege. Silkwood v. Kerr-McGee

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1 Corp., 563 F.2d 433, 436 (10th Cir. 1977). In reaching this holding, the Court noted
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that the filmmakers mission in this case was to carry out investigative reporting for
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4 use in the preparation of a documentary film, that he spent considerable time and
5 effort in obtaining facts and information and that it cannot be disputed that his
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intention, at least, was to make use of this in preparation of the film. Id. at 14337.
Additionally, as noted above, the Second Circuit has held that the intent to use
9 material to disseminate information to the public is paramount, and that [t]he

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intended manner of dissemination may be by newspaper, magazine, book, public or
12 private broadcast medium, handbill or the like. von Bulow, 811 F.2d at 144. Noting
13 that [t]he informative function asserted by representatives of the organized press . . .
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is also performed by lecturers, political pollsters, novelists, academic researchers, and
16 dramatists, id. at 145 (quoting Branzburg, 408 U.S. at 705), the Court stated that the
17 journalists privilege may be sought by one not traditionally associated with the
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institutionalized press. Id. at 14445; see also Berlinger, 629 F.3d at 307 (A
20 person need not be a credentialed reporter working for an established press entity to
21 establish entitlement to the privilege.).
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Similarly, in In re Madden, the Third Circuit adopted the reasoning of von
24 Bulow and Shoen I to hold that the privilege requires an intent at the inception of the
25 newsgathering process to disseminate investigative news to the public. 151 F.3d
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125, 129 (3d Cir. 1998). The outcomes in von Bulow and In re Madden demonstrate
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1 that applying the privilege is no mere formality. In both cases, courts found the
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privilege was inapplicable to the individuals seeking its protection, because although
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4 the information at issue was to be publicly disseminated, it was initially gathered as
5 part of a criminal defense effort (von Bulow, 811 F.2d at 146) or was to be used in
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corporate promotions (In re Madden, 151 F.3d at 130).

Adherence to the test articulated in Shoen I is especially important in light of
9 continued and rapid changes to the nature of the news media. In recent years,
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journalists have developed novel forms of disseminating information to the public
12 that would have been unthinkable only a few years before. For example, media
13 outlets now use Facebook to share news with friends, tweet news stories to
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followers in 140 characters or less, and make snaps of photos and videos available
16 to subscribers via Snapchat. See Michael Barthel, Elisa Shearer, Jeffrey Gottfried,
17 and Amy Mitchell, The Evolving Role of News on Twitter and Facebook, Pew
18
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Research Center (July 14, 2015), available at https://perma.cc/YNP3-73TP; Joseph
20 Lichterman, Snapchat stories: Heres how 6 news orgs are thinking about the chat
21 app, NiemanLab (Feb. 23, 2015), available at http://bit.ly/1zbdnLP.
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Podcasting, the medium by which Boal disseminated his reporting about Sgt.
24 Bergdahl, is also a relatively new form of journalism. Yet, according to one research
25 study, an estimated 98 million Americans have listened to a podcast at least once, and
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more than one in five Americans report listening to a podcast within the past month.
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1 Edison Research, The Infinite Dial 2016 (2016), available at http://bit.ly/2amwFOW.

2
The podcast at issue in this case, Serial, has been downloaded by millions of listeners
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4 and won numerous journalism awards. See John Koblin, Serial Podcast, Needing
5 More Reporting Time, Goes Biweekly, N.Y. Times (Jan. 12, 2016), available at
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http://nyti.ms/1RkMvHE; Serial, About Serial, available at https://perma.cc/K3CW-
8 KPFK (last visited July 25, 2016).

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Use of visual storytelling and interactive graphics in online media has also
transformed the way in which the public consumes news. See, e.g., Ginger
12 Thommpson, Susie Cagle, & Lena Groeger, The Making of a Narco-Terrorist,

13 ProPublica (Dec. 15, 2015), available at http://bit.ly/1Yy0sq1 (using original
14
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illustrations and an interactive website designed to feel like a card game to report
16 about sting operations carried out by the U.S. Drug Enforcement Administration);
17 John Branch, Snow Fall: The Avalanche at Tunnel Creek, N.Y. Times,
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http://nyti.ms/1dQ0jHo (last visited July 24, 2016) (combining text, historic
20 photographs, video, and informative graphics to create an interactive story about an

21 avalanche). Some media organizations have even begun using virtual reality to report
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the news. See Viewing the Future? Virtual Reality in Journalism, Knight Foundation
24 (March 13, 2016), http://kng.ht/2a9xXuu.

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As news organizations and individuals are using new forms to distribute works
of journalism, it is essential that the legal standard for defining who is entitled to
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1 claim the reporters privilege keeps pace. Application of the Shoen I test, which
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focuses not on the medium of distribution, but on the intent to disseminate
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4 information to the public when the information is gathered, ensures that reporters will
5 be entitled to the privilege even when using novel formats.
6
Under the test articulated in Shoen I, it is indisputable that Boal is a journalist
2
8 entitled to seek the protections of the reporters privilege. First, and most critically,
9 the evidence shows that he recorded the interviews with the intent to disseminate to
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the public information on a subject that was topical, controversial, and a matter of
12 significant public interest, namely, Sgt. Bergdahls disappearance from an Army

13 outpost in Afghanistan. Declaration of Mark Boal in Support of Ex Parte Application
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15
for Temporary Restraining Order and for Order to Show Cause, Mark Boal, et al. v.
16 United States of America et al., 2:16-cv-05407-GHK-GJS at 6 (filed July 21, 2016),

17 ECF No. 9-2 (Boal Decl.). Although Boal may not have known the precise
18
19
medium in which he would disseminate the information he gathered at the time the
20 interviews were conducted, the reporters privilege attaches to the interviews based
21 not on the medium used to report the news to the public, but rather on Boals intent.
22
23
Shoen I, 5 F.3d at 1293. Accordingly, the fact that Boal was considering various
24
2
Plaintiff Flakjacket LLC, d/b/a Page 1, is a company founded by Plaintiff Boal for
the sole purpose of producing his work, described as a combination of reporting and
26 entertainment. See Complaint for Declaratory and/or Injunctive Relief, or, In the
Alternative, Petition for a Writ of Mandamus and/or Prohibition, Mark Boal, et al. v.
27 United States of America et al., 2:16-cv-05407 at 9 (filed July 20, 2016), ECF No. 1
(Complaint). Accordingly, the following analysis discussing Plaintiff Boals intent
28 and work experience applies equally to both plaintiffs.
25
13

#:183
1 options regarding the format via which he intended to distribute information

2
regarding Sgt. Bergdahl to the publicwhether via a documentary, feature film, news
3
4 articles, or non-fiction book, see Boal Decl. at 6is irrelevant. Shoen I, 5 F.3d at
5 1293 (What makes journalism journalism is not its format but its content.).
6
7
Second, Boals prior experience as a professional journalist can act as
8 persuasive evidence of present intent to gather for the purpose of dissemination.

9 von Bulow, 811 F.2d at 144. Boals career as a professional journalist is extensive;
10
11
he has published numerous investigative news articles in traditional print media and
12 produced a forthcoming documentary film. See Boal Decl. at 25; Jordan Michael
13 Smith, The Many Faces of Mark Boal, The Nation (June 14, 2013), available at
14
15
http://bit.ly/2a8pgxN (discussing Boals reporting for The Village Voice, Mother
16 Jones, Rolling Stone, and Playboy).

17
18
19
Similarly, Boals previous work as a filmmaker, having written the screenplays

for the films The Hurt Locker and Zero Dark Thirty, among others, see Boal Decl. at
20 23, is persuasive evidence of his intent to disseminate information about Sgt.

21 Bergdahl. Though fictional, both The Hurt Locker and Zero Dark Thirty have been
22
23
described as having journalistic qualities. See Smith, supra at http://bit.ly/2a8pgxN.
24 In addition, both films communicated information on matters of public concern to

25 viewers. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 502 (1952)
26
27
28
(recognizing that fictional films are a significant medium for the communication of
14

#:184
1 ideas that are entitled to protection under the First Amendment); Shoen I, 5 F.3d at
2
1293 n.7 (citing Upton Sinclairs 1906 novel The Jungle as a prime example of
3
4 muckraking reporting exposing newsworthy facts on controversial matters of public
5 opinions).
6
7
Finally, the fact that portions of Boals interviews and other reporting were
8 ultimately broadcast to the public through the podcast Serial lends credibility to his
9 claim that he conducted the interviews with the intent to gather news for
10
11
dissemination to the public. By choosing to broadcast portions of the interviews with
12 Sgt. Bergdahl through Serial, Boal fulfilled his original intent to disseminate news
13 about Sgt. Bergdahls disappearance to a public audience. Because it is clear that
14
15
Boal had the intent, at the inception of the newsgathering process, to disseminate
16 information about Sgt. Bergdahls disappearance, that Boal is a member of the news
17 media, and that Boal ultimately did distribute information to the public based on the
18
19
interviews he conducted, Boal is squarely entitled under Shoen I to claim the
20 protection of the reporters privilege to shield from compelled disclosure the

21 confidential and nonconfidential but unpublished portions of the interviews.
22
23
24
III.
The Court should address these claims now to avoid irreparable harm
to Boal.
Boal seeks a declaration, injunction, or writ from this Court preventing the
25
26
issuance or enforcement of a subpoena by the military prosecutor in Sgt. Bergdahls
27 court martial. See Complaint at 2. This Court should provide Boal, who is a
28
15

#:185
1 civilian, with the relief he seeks at this juncture, before he is subjected to protracted
2
proceedings beginning with a military tribunal, in attempting to protect his
3
4 confidential and unpublished materials under the reporters privilege.
5
6
7
Subpoenas to members of the news media seeking confidential or unpublished

materials can result in lengthy legal battles that negatively affect the news medias
8 ability to cultivate and maintain relationships with sources and thereby report on
9 matters of public concern. For example, in 2008, New York Times reporter James
10
11
Risen was subpoenaed to testify before a grand jury about the source of information
12 in one of his books. See Matt Apuzzo, Times Reporter Will Not Be Called to Testify,
13 N.Y. Times (Jan. 12, 2015), available at http://nyti.ms/1z2niJk. The subpoena was
14
15
renewed in 2011, when the government sought Risens testimony in the trial of
16 former CIA officer Jeffery Sterling. See id. It was not until seven years after the first
17 subpoena was issued that the DOJ determinedafter applying updated DOJ
18
19
guidelinesthat it would not require Risen to testify about his confidential sources.
20 Id.; Josh Gerstein, James Risen subpoena faces new review, Politico (Oct. 10, 2014),
21 available at https://perma.cc/BF76-VZKX. Following Sterlings conviction, then22
23
Attorney General Eric Holder noted that the guilty verdict proved it is possible to
24 fully prosecute unauthorized disclosures that inflict harm upon our national security
25 without interfering with journalists ability to do their jobs. Matt Zapotosky,
26
27
28
Former CIA officer Jeffrey Sterling convicted in leak case, The Washington Post
16

#:186
1 (Jan. 26, 2015), available at https://perma.cc/58KE-X9QY.

2
Yet, during the seven years that Risen was subject to a subpoena, he worked
3
4 with the sword of Damocles over his head and with the constant threat that defiance
5 of the subpoena could end with him behind bars. Maureen Dowd, Wheres the
6
7
Justice at Justice?, N.Y. Times (Aug. 16, 2014), available at http://nyti.ms/1oR38qH.
8 In addition, the subpoena and lengthy legal process required to fight it created a
9 chilling effect on Risen and other reporters. Pulitzer-prize winning reporter Dana
10
11
Priest described the Risen subpoena as allowing officials to hold a hammer over the
12 head of a deeply sourced reporter, and others like him. Norman Solomon and Marcy
13 Wheeler, The Government War Against Reporter James Risen, The Nation (Oct. 27,
14
15
2014), available at http://bit.ly/2a6rdQS. Similarly, David Barstow, another Pulitzer-
16 prize winning reporter, stated that, as a result of the Risen subpoena, he had felt the
17 chill firsthand. Trusted sources in Washington are scared to talk by telephone, or by
18
19
email, or even to meet for coffee, regardless of whether the subject touches on
20 national security or not. Id.

21
22
23
This Courts resolution of Boals claims would be the most efficient approach
in terms of judicial economy and would eliminate an unnecessary and potentially
24 lengthy legal process in the military courts that would ultimately end up in federal
25 district court anyway. As Boal notes, see Memorandum of Points and Authorities in
26
27
28
Support of Plaintiffs Ex Parte Application, Boal et al. v. United States of America et

17

#:187
1 al., 2:16-cv-05407-GHK-GJS at 5 (filed July 21, 2016), ECF No. 9-1, government
2
enforcement of any military subpoena issued against Boal, a civilian, must take place
3
4 in federal district court. See 10 U.S.C. 847. Accordingly, the federal courts will
5 necessarily be called upon to rule on the enforceability of the subpoena if issued.
6
7
Rather than delay granting Boal the relief he seeks until after the subpoena has been
8 served and the government seeks to enforce it, this Court should issue the declaration,
9 injunction, or writ Boal seeks. See New York Times Co. v. Gonzales, 459 F.3d 160,
10
11
167 (2d Cir. 2006) (Gonzales) (holding that the district court properly exercised
12 jurisdiction over a newspapers request for declaratory judgment, in the face of a

13 threatened subpoena, that the reporters privilege extends to records held by third
14
15
party telephone providers); id. at 174 (Sack, J., dissenting) (agreeing with the
16 majority that declaratory judgment can be a salutary procedural device for testing
17 the propriety of a government attempt to compel disclosure of information from
18
19
journalists).3
In addition, this Court should grant Boal the relief he seeks now because DOJ
20
21 would inevitably see that enforcement of this subpoena would be inconsistent with
22
23
24
25
26
27
28
In Gonzales, the threatened subpoena arose out of a grand jury investigation

conducted in the Northern District of Illinois into the leak of information to the
newspaper. Gonzales, 459 F.3d at 16364. The newspaper filed suit in the Southern
District of New York, where the newspaper was located and the newsgathering at
issue occurred. New York Times Co. v. Gonzales, 382 F.Supp.2d 457, 479 n.14
(S.D.N.Y. 2005). Both the Southern District of New York and the Second Circuit
applied the law of the Second Circuitnot the law of the location of the grand jury
investigationin determining whether declaratory judgment was available to the
newspaper and whether the reporters privilege applied.
3
18

#:188
1 DOJ policy. In 2014, in response to questions about the Risen subpoena, then2
Attorney General Holder stated, As long as Im attorney general, no reporter who is
3
4 doing his job is going to go to jail. As long as Im attorney general, someone who is
5 doing their job is not going to get prosecuted. Charlie Savage, Holder Hints
6
7
Reporter May Be Spared Jail in Leak, N.Y. Times (May 27, 2014), available at
8 http://nyti.ms/1jscnLA. In 2015, current Attorney General Loretta Lynch adopted

9 Holders pledge, stating that she agreed with Holders position and would continue to
10
11
uphold it. Associated Press, Attorney General Lynch says Justice Dept. wont send
12 reporters to jail for doing their job, U.S. News & World Report (Oct. 9, 2015),
13 available at https://perma.cc/99SA-R7LP. Yet, if the government seeks to enforce a
14
15
subpoena to compel Boal to reveal confidential and unpublished material through
16 contempt proceedings, it will be attempting to send a journalist to jail simply for

17 doing his job.
18
19
Finally, the Court should protect Boal today because the enforcement of a
20 subpoena that, on its face, fails to overcome the reporters privilege infringes Boals
21 First Amendment rights and thereby causes irreparable harm. As noted above,
22
23
[c]ompelled disclosure of confidential sources unquestionably threatens a
24 journalists ability to secure information that is made available to him only on a

25 confidential basis, Baker, 470 F.2d at 782, as does the forced disclosure of
26
27
28
unpublished materials, Shoen I, 5 F.3d at 1295. This is especially true when the
19

#:189
1 reporter is attempting to cover the military and national security, Boals areas of
2
sustained journalistic and creative focus. See Boal Decl., 2; Human Rights Watch
3
4 & American Civil Liberties Union, With Liberty to Monitor All: How Large-Scale
5 US Surveillance is Harming Journalism, Law and American Democracy at 28 (July
6
7
2014), available at http://bit.ly/2amxaZh (stating that journalists on a military and
8 national security beat have skittish sources) (HRW & ACLU Report). In short,
9 Boal depends upon an atmosphere of confidentiality and trust to carry out his
10
11
newsgathering activities. Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (recognizing a
12 psychotherapist-patient privilege under Fed. R. Evid. 501).

13
14
15
For these reasons, enforcement of the subpoena in the federal courts would
impinge on Boals First Amendment right to engage in newsgathering. Both the
16 Ninth Circuit and the Supreme Court have repeatedly held that [t]he loss of First
17 Amendment freedoms, for even minimal periods of time, unquestionably constitutes
18
19
irreparable injury. Klein v. City of San Clemente, 584 F.3d 1196, 120708 (9th Cir.
20 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Accordingly, this Court
21 should grant Boal relief both to ensure judicial efficiency and in order to avoid the
22
23
24
25
26
irreparable injury that would otherwise result.

CONCLUSION
For the foregoing reasons, amici curiae respectfully urge this Court to grant
Boals ex parte application for a temporary restraining order and order to show cause.
27
28
20

#:190
1 Dated: July 29, 2016
Respectfully submitted,
/s/ Katie Townsend

Katie Townsend
SBN 254321
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1250
Washington, DC 20005
Phone: 202.795.9300
Facsimilie: 202.795.9310
Email: [email protected]
3
4
5
6
7
8
9
Counsel of Record for Amici Curiae
10
11
16
Bruce D. Brown*
Caitlin Vogus*
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1250
Washington, DC 20005
Phone: 202.795.9300
Facsimilie: 202.795.9310
17
*Of Counsel
12
13
14
15
18
19
20
21
22
23
24
25
26
27
28
21

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Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 1 of 26 Page ID #:165

1 KATIE TOWNSEND (SBN 254321)

2 THE REPORTERS COMMITTEE FOR

1156 15th Street NW, Suite 1250

7 Counsel of Record for Amici Curiae

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. 2:16-CV-05407-GHK-GJS

BRIEF OF AMICI CURIAE

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 2 of 26 Page ID #:166

TABLE OF AUTHORITIES ..................................................................................... ii

INTEREST OF AMICI CURIAE ............................................................................. 2

I. Requiring journalists to reveal confidential or unpublished materials

II. Boal is entitled to the protections of the reporters privilege. ...................... 8

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 3 of 26 Page ID #:167

4 Branzburg v. Hayes, 408 U.S. 665 (1972) ........................................................... passim

25 10 U.S.C. 847 ........................................................................................................... 18

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 4 of 26 Page ID #:168

(May 27, 2014), available at http://nyti.ms/1jscnLA .............................................. 19

Edison Research, The Infinite Dial 2016 (2016),

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 5 of 26 Page ID #:169

Risen, The Nation (Oct. 27, 2014), available at http://bit.ly/2a6rdQS .................... 17

Serial, About Serial, available at https://serialpodcast.org/about (last visited July 21,

2016), http://kng.ht/2a9xXuu .................................................................................. 12

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 6 of 26 Page ID #:170

Page 1 (collectively, Boal), for confidential or non-confidential but unpublished

organizations (collectively, amici) write in support of Boals Ex Parte Application

12 Should Not Be Preliminarily Enjoined from Issuing and Enforcing Subpoena.

The compelled disclosure of a journalists unpublished work product or

recognized a reporters privilege against such compelled disclosure in both criminal

process, to disseminate to the public information regarding Sgt. Bergdahls

27 disappearance from an Army outpost in Afghanistan. See Shoen I, 5 F.3d at 129394.

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 7 of 26 Page ID #:171

by the First Amendment. California First Amendment Coalition v. Calderon, 150

who is a civilian, would have to be brought in federal district court; accordingly, in

20 amici urge this Court to grant Boals Ex Parte Application.

INTEREST OF AMICI CURIAE1

The Reporters Committee for Freedom of the Press (Reporters Committee),

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 8 of 26 Page ID #:172

1 Associated Press, Association of Alternative Newsmedia, Association of American

8 Foundation, International Documentary Assn., Investigative Reporting Workshop at

12 National Press Photographers Association, National Public Radio, Inc.,

Guild CWA, Newspaper Association of America, Radio Television Digital News

16 Association, Reporters Without Boarders, Serial Podcast, LLC, Society of

24 dissemination, amici or their members at times rely upon promises of confidentiality

provided by sources. Additionally, in disseminating news to the public, each of the

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 9 of 26 Page ID #:173

disclosure confidential source information and unpublished materials gathered by

in ensuring that Boal is not required to divulge confidential or unpublished material

12 in contravention of the reporters privilege as a result of a subpoena issued in

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 10 of 26 Page ID

impairing its ability to acquire information for publication. Chevron Corp. v.

sources who require confidentiality of their identities or certain information as a

20 degrades the independent status of the press. Compelled disclosure of unpublished

24 might otherwise give them information without a promise of confidentiality, barred

Case 2:16-cv-05407-GHK-GJS Document 20-1 Filed 07/29/16 Page 11 of 26 Page ID

Journalists Privilege in Testimonial Privileges 47475 (Scott N. Stone & Ronald S.

Based on the negative impact of compelled disclosure of confidential or

12 First Amendment in both civil and criminal judicial proceedings to protect