My law school mentor used to joke that the First Amendment has protected a bunch of unsavory characters: separatists, chauvinists, white supremacists, communists, jingoists, bigots—and on its darkest days, he would say, the First Amendment has even protected journalists.
Now, we might be able to add one more to the list: Jan Brewer, the former Arizona governor, who has some unsavory marks on her record … and is kind of a journalist, she claims. Double the First Amendment fun!
Opponents of Arizona’s tough immigration law, known as SB 1070, recently asked a federal judge to order Brewer to comply with a subpoena for the notes and materials she used to write her 2011 book Scorpions for Breakfast.
The opponents, mostly civil liberties organizations, subpoenaed Brewer as part of a lawsuit against the sheriff of Apache County. The groups are challenging SB 1070 on various grounds, and they argue that Brewer, who is not a party to the suit, possesses notes and materials relevant to the case.
Those materials would be the source documents Brewer presumably relied on to write her book, much of which discusses SB 1070, and which she says she wrote in her personal, not official, capacity. And those documents—“emails, letters, memoranda, notes of meetings, recordings of interviews, etc.”—would shed light on certain facts at issue in the case, the law’s opponents claim. The groups requested the materials from Brewer twice before, in August and November 2014, but both times she refused to disclose anything, citing several reasons.
One of them: the First Amendment.
Journalist’s privilege: Not just for journalists
In part, Brewer is arguing that the First Amendment-based journalist’s privilege allows her to shield her notes and source materials.
She may be right. In the Ninth Circuit, which covers Arizona, and in the majority of other circuits, “the journalist’s privilege is a recognition that … 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.”
Generally, the purpose of the privilege is to protect that free flow, rather than to shield the press as an institution. The criteria for who can claim the privilege vary from one jurisdiction to the next, but usually they cover more than just journalists.
In the Ninth Circuit, the privilege allows journalists and other public communicators, including investigative book authors, to protect their confidential and non-confidential sources and materials. To invoke the privilege, a person has to show that she developed the sources and materials at issue with the intent to disseminate information to the public. Working on a book meets that requirement.
In part of a letter that reads like James Risen could’ve written it, Brewer claims that forcing her to disclose her notes and materials:
(1) threatens administrative and judicial intrusion into the information gathering and editorial process; (2) gives the appearance that authors are an investigative arm of the judicial system or that of a private party to litigation; (3) disincentivizes compilation and preservation of non-published material; (4) burdens authors’ time and resources in responding to subpoenas; and (5) encourages the destruction of research materials soon after publication.
A (former) governor after my own heart.
(A side issue is whether the organizations could use the state public records law to obtain Brewer’s notes and materials. She was governor when she wrote the book and when the initial requests were made. However, recall that Brewer says she did not write the book in her official capacity, and it appears the organizations have not filed a records request for the materials. And if they did, the materials probably would not be disclosable under exemptions to the records law—or if she succeeded in her First Amendment claims, because a statute may not require a person to disclose what the Constitution says you may withhold.)
Ultimately, whether Brewer succeeds may depend less on whether she qualifies for the journalist’s privilege than on whether she has taken some of the steps necessary to get its protections.
The civil liberties organizations say she waived the privilege by failing to provide a timely “privilege log”: a document listing and very generally describing the notes and materials withheld from disclosure. Creating and providing such a log is part and parcel of invoking a privilege in a civil case—it enables the parties to evaluate the propriety of the privilege claim itself.
I’d expect a filing soon from Brewer addressing that issue. Until then, consider her a probationary member of the First Amendment’s team of unsavories.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.