Jonathan Peters presents on media freedom to court officials and journalists in Uzbekistan

Jonathan Peters, an associate professor of journalism who holds a secondary faculty appointment in the School of Law, regularly provides counsel and commentary on First Amendment issues in America. His expertise on the subject has made him a sought-after scholar around the world.

On December 3, 2020, Peters delivered two presentations to Uzbekistani journalists and court officials, including members of the Supreme Court of the Republic of Uzbekistan, about rights of access to United States courts and how U.S. journalists cover legal issues.

Peters was invited by the United Nations Development Programme (UNDP) because of his related work in the United States. His presentations were part of a larger project called the “Rule of Law Partnership in Uzbekistan,” whose purpose is to strengthen public access to the nation’s judiciary as well as public trust in it. The project is supported by the United States Agency for International Development (USAID).

“I was excited to be part of the event, and I was grateful for the chance to work with UNDP and USAID,” said Peters. “Their officials were helpful and supportive, and it was so interesting to learn from them about Uzbekistan—and to contribute to their efforts to strengthen public trust in the judicial system there.”

His primary message was consistent with a lesson he tries to impart to all of his UGA students: that journalism and law must make constant collaboration a priority to coexist productively and in service of democracy.

“There has to be a regular effort to reach across the differences in habit and philosophy that separate journalism and law,” Peters said. “This is really important because each profession can be so absorbed in its own ends that it can lose sight of the other.”

After his presentations, Peters fielded questions from the Uzbekistani participants, allowing judges and journalists alike to gain insight into American media and legal processes. The journalists, for example, asked about how best to explain the law’s complexities. The court officials, meanwhile, asked about media credentialing and whether U.S. judges are able to comment publicly on their rulings.

Uzbekistan is experiencing what Peters describes as “significant democratic change,” and his conversations with the court officials and journalists there made even clearer to him the strong relationship between open courts and a well-functioning democracy.

“That relationship is essential to the goals of political accountability and knowledge discovery and to the achievement of a dynamic civil society,” said Peters. “The rule of law is preserved partly by public knowledge of court rulings and activities.”

Peters encouraged judicial transparency and media access to courts, because news coverage of trials and the law can provide a critical service for citizens both factually and emotionally.

“The U.S. Supreme Court has empha­sized repeatedly the historical importance of public trials and has reasoned that openness improves the functioning of a trial and has therapeutic value,” Peters said. “As the Court once put it, public trials provide ‘an outlet for community concern, hostility and emotion,’ and they educate and enhance public acceptance that justice is being done.”

The seminar with Uzbekistani officials and journalists is the latest international consultation for Peters. He is a regular participant in the U.S. Department of State’s Edward R. Murrow Program, through which he has trained journalists from dozens of countries in media-freedom principles. He has also consulted for European intergovernmental organizations on press rights at protests, and last year he completed a research project to inform the drafting of a United Nations Human Rights Committee document interpreting the right of peaceful assembly.



Papers in 1972 Supreme Court case have implications for journalist’s privilege today

Analysis of the papers of U.S. Supreme Court Justice Lewis F. Powell Jr. sheds new light on a nearly 45-year-old ruling involving journalist’s privilege, according to William E. Lee at the University of Georgia Grady College of Journalism and Mass Communication.

Lee’s research examined Powell’s notes, memoranda and correspondence with other justices for the case of Branzburg v. Hayes, the only journalist’s privilege case ever heard by the Supreme Court. In Branzburg, a journalist claimed a First Amendment right to refuse to reveal his sources to a grand jury investigating illegal drug use. The court ruled 5-4 that there was no First Amendment-based privilege; journalists, like other citizens were obligated to testify before grand juries.

Powell cast the deciding vote and wrote a concurring opinion. Lower courts addressing subsequent journalist privilege cases have struggled to decipher Powell’s separate opinion. Some courts believe Powell supported a journalist’s privilege, other courts conclude that Powell rejected the privilege. Because of these conflicting interpretations, a judge on the 4th Circuit Court of Appeals wrote in 2013 that the lessons of Branzburg are “as clear as mud.”

The goal of Lee’s research was to clarify what has long been regarded as one of the most confusing concurring opinions in the court’s First Amendment cases. The research included review of Powell’s papers, which are archived at Washington & Lee University; studies of available papers from other justices, housed at the Library of Congress; and interviews with law clerks, including Larry Hammond who as a law clerk to Powell in 1972 assisted in the preparation of the concurring opinion.

Lee believes, based on extensive research, that Powell was opposed to a First Amendment-based privilege. Powell believed any journalist’s privilege should be created by legislatures, not the judiciary. While courts should be sensitive to the burden of unreasonable subpoenas, Powell did not believe that journalists were entitled to special constitutional protection.

“Those courts that have read his opinion in a very expansive way, who have treated it as promoting a journalist’s privilege, I think are wrong,” said Lee, a professor of journalism and communication law. “I believe Powell was more narrowly focused and only in extreme cases of what he called harassment would courts protect journalists. In most circumstances he thought that journalists had to testify and reveal information they had received in confidence.”

Other key justices for Branzburg v. Hayes included Justice Bryon White, who wrote for the majority saying that the Supreme Court was not going to grant journalists a special testimonial privilege that other citizens do not enjoy, and Justice Potter Stewart, who wrote the dissenting opinion in favor of protecting journalists.

Powell sided with the majority but wrote the following, which some courts have interpreted broadly over the years: “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”

Lee traces the development of Powell’s concurring opinion and shows that Powell’s attention to the case was limited due to the intense discussion within the court as to whether to rehear the abortion case Roe v. Wade. At the same time as Branzburg, Powell was also preoccupied with Furman v. Georgia, in which the court struck down the death penalty in several states.

This research is important, according to Lee, because the law of journalist’s privilege is a mess. Since there is no federal shield law, a patchwork of legal protections may be applicable depending on the jurisdiction. In some areas of the country, journalists may rely on a First Amendment-based privilege in federal proceedings. Other jurisdictions do not recognize this privilege. Some states have strong statutory shield laws, but most states offer only qualified protection to journalists. “Right now, the protections for journalists vary wildly from state to state,” Lee said. “It’s messy and you can’t predict all the variables that would be at play when you make a promise to a source that you will protect their identity.”

Lee continues: “These are ongoing issues that affect communicators on a regular basis. As long as courts treat Powell as protecting journalists and being more like Stewart, then there is no incentive for Congress to craft a federal shield law. Congress has backed away because it thinks the lower courts are doing a good job of protecting journalists.”

Lee’s research, “A revisionist view of journalist’s privilege: Justice Powell, Branzburg and the ‘Proper Balance,’” was published in the 2016 issue of the “Cardozo Arts & Entertainment Law Journal.”