United States v. Brand

Court: U.S. District Court for the District of Massachusetts

Date Filed: Nov. 15, 2022

Update: On Nov. 21, 2022, the U.S. District Court for the District of Massachusetts denied the media coalition’s motion for leave to file the friend-of-the-court brief, concluding that “a trial court presiding over a criminal prosecution should not receive or consider volunteered submissions by non-parties except as may be specifically authorized by statute or other authority.”

Background: In October 2022, federal prosecutors issued a subpoena to Boston Globe reporter Joshua Miller ordering him to testify in a criminal trial about an interview he did for a 2019 story about an admissions scandal at Harvard University.

In its opposition to Miller’s motion to quash the subpoena, the government states that it is seeking Miller’s testimony “solely to confirm statements that were made” in his article. That would satisfy the U.S. Justice Department’s recently updated news media guidelines, which generally prohibit efforts to obtain records or testimony from, or of, journalists engaged in newsgathering. The new guidelines permit the Justice Department to use compulsory legal process for purposes of “authenticat[ing] for evidentiary purposes information or records that have already been published.”

Our Position: The district court should grant Miller’s motion to quash the subpoena.

• The use of compulsory process against a non-party journalist chills newsgathering by eroding trust between reporters and their sources and undermining the public’s perception of the news media’s independence.
• Compulsory process against non-party journalists also imposes financial and other burdens that impede newsgathering and reporting on matters of public concern.
• The government’s subpoena raises the possibility that the questioning of Miller may stretch beyond mere authentication of published statements to touch on questions concerning confidential sources and methods of newsgathering that the reporter relied on in the course of his reporting.

Quote: “Compelling reporters to testify about their communications with sources — even on-the-record, nonconfidential conversations — harms the newsgathering and reporting process, to the ultimate detriment of the public.”