The November 11, 2010  CSI  episode, “Fracked”, which aired on CBS is remniscent of Steven Soderbergh’s 2000 blockbuster Erin Brockovich. Starring Julia Roberts, the film tells the story of real-life Erin Brockovich‘s investigation that uncovered Pacific Gas & Electric Company’s shifty practices in Hinckley, California. Her persistence led to a $333 million settlement for Hinckley residents. Ten years later, PG&E is still dealing with toxic plumes in Hinckley’s groundwater. To read more about it, click here.  

In “Fracked,” the murder of a small town resident alerts the Crime Scene Investigation team of a local gas conglomerate’s questionable practices because of his cancer-ridden body and his close relationship with Rosalind Johnson (Angela Bettis), a journalist. The team brings Johnson in for questioning to attempt to find out more information on the man’s death and his connection to the gas company. Johnson alludes to the deceased’s role in her article about the gas company, but does not provide any relevant information to the murder. Ray Langston (Laurence Fishburne) suspects Johnson knows more than she lets on. He prods to find out  more information about the gas company’s involvement with the deaths of a number of small-town residents. However, she refuses to provide more information and reminds Langston of her rights under the First Amendment. But does the First Amendment protect her from revealing information such as confidential sources that could be relevant to a criminal investigation?

The leading case on the matter is the 1972 case of Branzburg v. Hayes. In this case, the Supreme Court of the United States tackled the issue of whether there existed a “constitutional right of special access to information not available to the public generally.” The Court denied the contention that a reporter had special privilege that immunized him from having to testify as a grand jury witness in a criminal investigation. The split 5-4 decision expressed concern that petitioners were asking the Court to allow a “testimonial privilege that other citizens do not enjoy.”Writing for the majority, Justice White observed that the press has never had a constitutional protection and the press has still “flourished.” The Court is unclear as to whether journalists should have some special treatment because the Court reasoned, “Without some protection for seeking out the news, freedom of the press could be eviscerated.”

This loophole has caused more than thirty states to enact press shield statutes. Nevada, where the fictitious crime scene investigation team is based, provides reporters this protection under N.R.S 49.275 . The statute states that no reporter may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving, or processing information for communication to the public in any legal proceedings, trial or investigation. The legislative history behind the statute was explained in the 2000 case of Diaz v. Eighth Judicial Dist. Court. In that decision, the court stated that the purpose behind the statute was to ensure the free flow of information, especially information concerning the government’s corruption or mismanagement. The legislatute rationalized that the public is more likely to inform reporters of their concerns if they feel that they can do so in confidence.

 An article posted on the website of the international media and marketing solutions company Gannett describes Nevada’s press shield statute as one of the most protective in the nation. The article discusses a recent case in which a journalist’s information regarding a fatal car accident was privileged. However, the article warns that the court’s decision in that case is premised in the state statute and not the First Amendment.

Douglas Lee, an attorney based in Illinois, wrote about the discrepancies in state and federal shield laws in an article for the First Amendment Center. He highlights that these statutes vary in detail, but that generally, the statutes provide that privileged information cannot be obtained unless the party seeking the information can establish that (1) the information is highly material and relevant to the case at issue (2) a compelling need exists for the information and (3) the information cannot be obtained by other means.

The crime scene investigation team can easily satisfy the first two prongs of the test. Firstly, it is clear that the information that Johnson knows is highly material and relevant to the case at issue. The last person the deceased spoke to was Johnson (evidenced by phone records) and his constant meetings with her (evidenced by his agenda) suggest that the pair were discussing a relevant matter. Furthermore, during the course of their investigation the team discovered a second death. Like the first victim, this man spoke to Johnson on the phone before he died and met with Johnson regularly before his death. The second victim was an engineer for the gas conglomerate and had visited the first victim’s property on numerous occasions. It is possible then that these men’s murders were linked and that Johnson could be privy to important information that the men knew that led to their deaths. 

Secondly, in the present case, a compelling need exists for the information. During the course of the team’s investigation, they witness three deaths. If the team does not find out more information about the gas company’s involvement in the murders, it could result in more deaths. Clearly, the health and safety of Nevada’s residents is a compelling need for Johnson’s information. However, in most cases, the state will be able to prove a compelling need for the information.

Thus, the issue then becomes whether the team can obtain the information in another manner. The present case illustrates an instance when the team could obtain the information using other methods. Even though a delay in the process can result in the death of more innnocent individuals, the fact that the information can be obtained in another way affords protection to Johnson’s information. Thus, it is likely that a court would hold that Johnson does not have to disclose her unpublished information to aid in a quicker investigation to prevent further harm. In fact, in the episode, Johnson did not have to disclose the information because the team was able to reach the conclusion through their scientific investigation.  Therefore, if a journalist can prove that the state can find the relevant material using other ways, it is likely that he/she will not have to disclose the information (especially in Nevada, because of their protective press shield laws).

Lee’s article for the First Amendment Center mentions a congressional proposal for a federal shield law that was passed by the House of Representatives in 2009. President Barack Obama has expressed opposition to the bill because of national security concerns. The Senate is considering its own version of the bill. However, the President of the Society of Professional Journalists, Kevin Smith, states that Obama’s opposition will unduly burden the bill. It will be interesting to see how controversy over this federal shield law develops.

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