Program featuring illegal immigrants

Q: Our station has created a series vignettes. These are interviews (in Spanish) with people in all walks of life who have made a success of themselves. The vignettes are sponsored by advertisers. We want to produce two with people/families who are illegal immigrants but have survive/made it in the America. It represents a significant number of our viewers and an important topic in our community. We plan to backlight the people sufficiently so they cannot be physically identified.

Are we protected in case INS comes knocking at our door and asks for their identity?

A: Unfortunately, you cannot be assured that you will be able to protect the identity of sources for your series. The First Amendment does not protect journalists from being compelled to testify regarding confidential sources or unpublished information sought by the federal government in a criminal investigation, at least if the information is sought by a federal grand jury. Branzburg v. Hayes, 408 U.S. 665 (1971); In re Grand Jury Proceedings, 5 F.3d 397 (9th Cir. 1993); Lewis v. United States, 517 F.2d 236 (9th Cir. 1975). Although the California Shield Law protects journalists from inquiries by state prosecutors, federal courts have generally held that it does not apply in federal proceedings. Lewis, 517 F.2d at 237; Dillon v. City & County of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990). The same rule is likely to be applied to an INS subpoena, and in any event if an administrative subpoena was deemed inadequate the United States Attorney could issue a grand jury subpoena for the same purpose. Therefore, refusal to identify sources or provide information could result in being held in contempt of court, which can be enforced through incarceration or monetary sanctions.

Assuming that the journalists involved are not charged with or implicated in any criminal offense, the Fifth Amendment does not provide any protection from compelled testimony. Moreover, even if a journalist is in a position to assert a Fifth Amendment privilege, the government can avoid it by offering immunity to the journalist.

I'm sorry not to be able to provide you with better news. In these circumstances, your best protection is simply to avoid learning the true identities of the sources. It's difficult to avoid such knowledge, but not impossible.