NEFAC, Media Groups Defend Journalist’s Right to Protect Unpublished Interviews, Receive Due Process in Civilian Court


CONTACT Justin Silverman | 774.244.2365 |


July 29 Amici Curiae Brief

The New England First Amendment Coalition recently joined an amici curiae brief in a federal court proceeding in California that involves important issues regarding reporters’ privilege and the authority of military prosecutors to issue subpoenas to civilian news media members without going through the judicial system.

The case in the U.S. District Court Central District of California will determine whether journalist Mark Boal must release to military prosecutors unpublished recordings he made while interviewing U.S. Army Sgt. Robert Bergdahl. Bergdahl disappeared outside an Army outpost in Afghanistan in 2009, was held by the Taliban for five years and now faces court martial. Boal’s interviews with Berghahl were featured in the second season of the podcast Serial.

NEFAC and 36 other media groups joined the brief, drafted by the Reporters Committee for Freedom of the Press and filed on July 29. The amici argue that Boal is entitled to certain protections as a journalist and that federal district court — not a military court — is the proper venue for civilian witnesses claiming constitutional protections.

“The nation relies on the press for information about the performance of the government, the military, and other institutions of significant public concern,” the brief states. “[R]equiring journalists to reveal confidential or unpublished materials threatens their autonomy to gather information and report it to the public. The reporter’s privilege is essential to preserving the free flow of information through the press to the public and the resulting benefits to American democracy.”

To determine if information can be protected by a reporter’s privilege, the amici explained, the court must first establish if the individual who seeks to invoke the privilege qualifies for protection as a journalist. When answering this question, the court should use the test provided in Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993). This requires considering whether there was an intent to use the material sought, gathered or received to disseminate information to the public and whether such intent existed at the inception of the newsgathering process.

It is clear in this case that Boal intended to disseminate his interviews to the public, given his extensive experience in the news industry, which has included writing many investigative news articles, documentaries and screenplays, and the fact that he published his interviews with Bergdahl in Serial.

The Shoen test focuses on the intent of the individual gathering information. It does not consider the type of media used for distributing information to the public. Whether new media platforms such as Facebook, Twitter, and as in this case, podcasts are used, is not relevant in determining if the journalist qualifies for protection.

“While this case is being heard outside New England, it addresses important questions about journalism and how it is defined,” said Justin Silverman, NEFAC’s executive director. “But it’s also about making sure journalists continue to have the protection of civilian courts when First Amendment freedoms are at stake.”


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.