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Charles F. Hinkle, OSB No. 710839

charles.hinkle@stoel.com

STOEL RIVES LLP

760 SW 9th Avenue, Suite 3000

Portland, OR 97205

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Mathew dos Santos, OSB No. 155766

mdossantos@aclu-or.org

ACLU Foundation of Oregon, Inc. 

PO Box 40585

Portland, Oregon 97240

Attorneys for ACLU Foundation of Oregon, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

JASON PATRICK, DUANE LEO EHMER, 

DARRYL WILLIAM THORN, and JAKE 

RYAN, 

Defendants.

Case No. 3:16-cr-00051-BR

MOTION TO APPEAR AS AMICUS 

CURIAE AND TO FILE 

MEMORANDUM IN SUPPORT OF 

MOTION TO QUASH SUBPOENA TO 

REPORTER 

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I. Motion

ACLU Foundation of Oregon, Inc. (“ACLU”) respectfully moves for an order permitting 

it to file the memorandum set out below in support of the Motion of John Sepulvado and Oregon 

Public Broadcasting to Quash Subpoena. ACLU has no private interest in the outcome of the 

merits of this case, but it has a strong interest in defending and promoting freedom of the press 

and in protecting the ability of journalists to engage in their newsgathering responsibility without 

interference from the government. ACLU has supported “media shield” laws at the state and 

federal level, and has filed amicus briefs in a number of cases involving efforts by state and 

federal law enforcement agencies to require journalists to testify in criminal prosecutions.

ACLU therefore seeks leave to file the amicus memorandum set out below, in order to 

present a position as to the correct rule of law. In this memorandum, ACLU relies on the 

statement of facts set out in the motion filed by Sepulvado and OPB. 

II. Memorandum

A. The role of the press

The U.S. Supreme Court has described the media as “surrogates for the public” in 

obtaining and reporting the news of the day. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 

555, 573, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). “Beyond question, the role of the media [in 

reporting on public affairs] is important; acting as the ‘eyes and ears’ of the public, they can be a 

powerful and constructive force, contributing to remedial action in the conduct of public 

business.” Houchins v. KQED, Inc., 438 US 1, 8, 98 S Ct 2588, 57 L Ed 2d 553 (1978) (plurality 

opinion). For those reasons, among others, the courts have recognized that “‘newsgathering is an 

activity protected by the First Amendment.’” Leigh v. Salazar, 677 F.3d 892, 897 (9th Cir 2012) 

(citation omitted). 

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The importance of the media in preserving democracy has been recognized since the 

foundation of the American republic. Thomas Jefferson famously wrote that “were it left to me 

to decide whether we should have a government without newspapers, or newspapers without a 

government, I should not hesitate a moment to prefer the latter.”1 Jefferson’s attitude may no 

longer represent the prevailing view in this country; certainly the present occupant of the White 

House has quite a different attitude toward the press. In a tweet dated February 17, 2017, 

President Trump asserted that “The FAKE NEWS Media *** is the enemy of the American 

People!”2 A month earlier, he told a gathering at CIA headquarters that “I have a running war 

with the media.”3

In a time when the news media are coming under increasing attack, it is more important 

than ever that the courts protect the independence of the media. The role of the media in 

gathering and disseminating the news is compromised whenever government attempts to enlist 

the media as part of its investigation and prosecution of criminal conduct. Requiring journalists 

to function as an arm of the government in prosecuting crime necessarily threatens the 

independence of the media and inhibits their ability to gather the news. A great many people 

would be reluctant to talk to journalists and sources would dry up if they perceived those 

journalists to be agents of the government. “[I]t is critical for the press to be able to report fairly 

 1 See Philip Kurland and Ralph Lerner, eds., “The Founders’ Constitution: Amendment I 

(Speech and Press),” available at http://press-pubs.uchicago.edu/founders/documents 

/amendI_speechs8.html (visited Feb. 22, 2017). 

2 The President’s tweet has been widely reported; it is quoted, for example, in “Fox News 

anchor Chris Wallace warns viewers: Trump crossed the line in latest attack on media,” The 

Washington Post (Feb. 19, 2017), available online at https://www.washingtonpost.com/news/thefix/wp/2017/02/19/fox-news-anchor-chris-wallace-warns-viewers-trump-crossed-the-line-inlatest-attack-on-media/?utm_term=.b7abe1f1234c (visited Feb. 22, 2017).

3 “Trump says he has ‘running war’ with media, gets facts wrong, in CIA speech,” CNN 

(Jan. 21, 2017), available online at http://money.cnn.com/2017/01/21/media/donald-trump-warwith-the-media/ (visited Feb. 22, 2017).

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and accurately on every aspect of the administration of justice,” Salzano v. North Jersey Media

Group Inc., 993 A2d 778, 790-91 (NJ 2010), and the press cannot perform that function if 

reporters are perceived to be tools of the government.

Based on the facts set out in the motion filed by Sepulvado and OPB, ACLU agrees with 

them that the government’s subpoena should be quashed. As shown more fully below, ACLU 

submits that Sepulvado has a privilege under the First Amendment not to testify in response to 

that subpoena, but because courts “should not pass upon a constitutional question, *** if there is

a nonconstitutional ground upon which the case may be decided,” Polar Shipping Ltd. v. 

Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir. 1982), this court should first consider 

whether and to what extent Sepulvado has a common law privilege not to testify.

B. Common Law Privilege 

In 1972, the U.S. Supreme Court noted that as of that date, no journalist’s privilege had 

been recognized at common law. Branzburg v. Hayes, 408 U.S. 665, 685, 688, 92 S. Ct. 2646, 

33 L.Ed.2d 626 (1972). However, in a concurring opinion that Justice Stewart called 

“enigmatic,” id. at 725, Justice Powell, whose vote was essential to the 5-4 majority opinion, 

seemed to endorse some form of privilege by pointing out “the limited nature of the Court’s 

holding.” Id. at 709. According to Justice Powell, the Court in Branzburg “[did] not hold that 

newsmen *** are without constitutional rights with respect to the gathering of news or in 

safeguarding their sources.” Id. “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 ***.” Id. at 710. 

In a highly-publicized journalist’s privilege case in 2005 involving the disclosure of the 

identity of a CIA agent, Judge Henderson opined that courts “are not bound by Branzburg’s

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commentary on the state of the common law in 1972.” In re Grand Jury Subpoena, Judith 

Miller, 397 F.3d 964, 983 (D.C. Cir.) (Henderson, J., concurring), reh. en banc denied, 405 F.3d 

17 (D.C. Cir.), cert. denied, 545 U.S. 1150 (2005) (“Judith Miller”). Judge Henderson noted that 

“Federal Rule of Evidence 501, which came into being nearly three years after Branzburg, 

authorizes federal courts to develop testimonial privileges ‘in the light of reason and experience,’ 

allowing for the often evolving state of the commonlaw [sic].” Id.

The three members of the panel in Judith Miller took three different positions on the 

issue of whether a journalist’s privilege exists at common law: “Judge Sentelle would hold that 

there is no such common law privilege ***. Judge Tatel would hold that there is such a common 

law privilege. Judge Henderson believes that we need not, and therefore should not, reach that 

question.” Judith Miller, 397 F.3d at 973. Judge Sentelle concluded that Branzburg had decided 

the issue, id. at 977, but Judge Tatel strongly disagreed. 

One thing is certain: the law has evolved a great deal since Branzburg was decided in 

1972. At that time, as the Court in Branzburg noted, 408 U.S. at 689 n. 27, only 17 States had 

enacted statutes recognizing a journalist’s privilege. By 2005, however, 49 States and the 

District of Columbia “offer[ed] at least qualified protection to reporters’ sources.” Judith Miller, 

397 F.3d at 993 (Tatel, J., concurring). The nearly unanimous consensus on this point among the 

States is a strong indicator that the common law should recognize such a privilege, for the 

Supreme Court itself was strongly influenced by a similar consensus among the States when it 

recognized, for the first time, a psychotherapist privilege as a matter of federal common law in 

Jaffee v. Redmond, 518 U.S. 1, 12, 116 S. Ct. 1923, 135 L.Ed.2d 337 (1996) (“That it is 

appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is 

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confirmed by the fact that all 50 States and the District of Columbia have enacted into law some 

form of psychotherapist privilege”). 

In concluding that a journalist’s privilege should be recognized at common law, pursuant 

to the authority of Fed.R.Evid. 501, Judge Tatel relied in large part on the approach taken by the 

Supreme Court in recognizing the psychotherapist privilege in Jaffee:

“Under Jaffee, the common law analysis starts with the 

interests that call for recognizing a privilege. See 518 U.S. at 11. 

If, as the Supreme Court held there, ‘[t]he mental health of our 

citizenry is a public good of transcendent importance,’ id.—one 

that trumps the ‘fundamental maxim that the public has a right to 

every man’s evidence,’ id. at 9 (internal quotation marks and 

ellipsis omitted)—then surely press freedom is no less important, 

given journalism’ vital role in our democracy. Indeed, while the 

Jaffee dissenters questioned psychotherapy’s ‘indispensable role in 

the maintenance of the citizenry’s mental health,’ see id. at 22 

(Scalia, J., dissenting), the First Amendment’s express protection 

for ‘freedom ... of the press’ forecloses any debate about that 

institution’s ‘important role in the discussion of public affairs,’ 

Mills v. Alabama, 384 U.S. 214, 219, 86 S. Ct. 1434, 16 L.Ed.2d 

484 (1966). ‘Whatever differences may exist about interpretations 

of the First Amendment, there is practically universal agreement 

that a major purpose of that Amendment was to protect the free 

discussion of governmental affairs.’ Brown v. Hartlage, 456 U.S. 

45, 52, 102 S. Ct. 1523, 71 L.Ed.2d 732 (1982) (quoting Mills, 384 

U.S. at 218-19, 86 S. Ct. 1434).” 

Judith Miller, 397 F.3d at 991 (Tatel, J., concurring). Later in his opinion, Judge 

Tatel wrote: 

“Given that the common law issue thus remains open, this 

court must assess the reporters’ claim in light of ‘reason and 

experience’ today. As Branzburg itself observes in describing 

Congress’s powers, privilege rules may require ‘refashion[ing] ... 

as experience from time to time may dictate.’ 408 U.S. at 706. 

Bestowing that refashioning power on the federal courts, Rule 501 

evidences an ‘affirmative intention not to freeze the law of 

privilege,’ but rather ‘to leave the door open to change.’ Trammel

[v. United States], 445 U.S. [40], 47, 100 S. Ct. 906[, 63 L.Ed.2d 

186 (1980) (confidential marital communications)]. Consistent 

with that intent, the Court in Trammel modified the privilege 

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against adverse spousal testimony recognized just twenty-two 

years earlier in Hawkins v. United States, 358 U.S. 74, 79 S. Ct. 

136, 3 L.Ed.2d 125 (1958), allowing the testifying spouse to waive 

the privilege, see Trammel, 445 U.S. at 53, 100 S. Ct. 906, even 

though Hawkins had held just the opposite, see Hawkins, 358 U.S. 

at 77- 78, 79 S. Ct. 136.”

 

Judith Miller, 397 F.3d at 994 (Tatel, J., concurring).

Recognition of such a privilege would be particularly appropriate in the context of this 

case, because Oregon has one of the strongest “shield laws” in the nation. Or. Rev. Stat. 

§ 44.320 provides in relevant part as follows:

“(1) No person * * * employed by * * * any medium of 

communication shall be required by a * * * judicial officer or 

body * * * to disclose, by subpoena or otherwise:

“(a) The source of any published or unpublished 

information obtained by the person in the course of gathering, 

receiving, or processing information for any medium of 

communication to the public; or

“(b) Any unpublished information obtained or prepared 

by the person in the course of gathering, receiving, or processing 

information for any medium of communication to the public.”

The Oregon Court of Appeals has said that “[o]n its face, ORS 44.520(1) protects 

absolutely materials that fall within the shield, which include ‘any unpublished information 

obtained *** in the course of [newsgathering]’ and not just confidential information or its 

source.” State ex rel. Meyers v. Howell, 86 Or. App. 570, 575, 740 P.2d 792, 795 (1987) 

(emphasis added; ellipses and brackets in original). The Ninth Circuit has stated that federal 

courts “may also look to state privilege law” in determining the existence and scope of privileges 

that should be recognized under Fed.R.Evid. 501,” Tennenbaum v. Deloitte & Touche, 77 F.3d 

337, 340 (9th Cir. 1996), and the law of Oregon with respect to the journalist privilege is very 

clear. The Supreme Court, in Jaffee, noted in the context of recognizing a federal common law 

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psychotherapist privilege that “any State’s promise of confidentiality would have little value if 

the patient were aware that the privilege would not be honored in a federal court,” 518 U.S. at 

13, and a similar observation can be made with respect to the promise of confidentiality that 

Oregon has made to journalists and their sources. 

If the Court decides not to apply the absolute privilege found in Oregon law, then it 

should apply the same kind of balancing test that is applicable under the First Amendment. That 

balancing test, and its application in this case, is discussed below, following the discussion of the 

First Amendment privilege.

C. First Amendment Privilege 

If this Court determines that no common law privilege applies to this case, then it must 

consider the application of the First Amendment journalist’s privilege. 

More than 30 years ago, this court, per Judge Panner, recognized a First Amendment 

journalist’s privilege, and applied it to quash a subpoena to a reporter in a criminal case. United 

States v. Pendergraft, CR 85-06 (PA) (May 7, 1985). A copy of Judge Panner’s Order is 

attached to this motion as Exhibit 1. 

Eight years later, the Ninth Circuit agreed with Judge Panner, and squarely held that 

under the First Amendment, “when facts acquired by a journalist in the course of gathering the 

news become the target of discovery, a qualified privilege against compelled disclosure comes 

into play.” Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (“Shoen I”). This “journalist’s 

privilege” is “a ‘partial First Amendment shield’ that protects journalists against compelled 

disclosure in all judicial proceedings, civil and criminal alike.” Id. (emphasis added). “The 

journalist’s privilege is designed to protect investigative reporting,” id. at 1293, and it “applies to 

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a journalist’s resource materials even in the absence of the element of confidentiality.” Id. at 

1295.

There is thus no doubt that the First Amendment privilege, as recognized in this Circuit, 

applies to plaintiff’s subpoena to Sepulvado. The Ninth Circuit in Shoen I explained how a court 

is to apply the privilege on the facts of a particular case:

“Once the privilege is properly invoked, the burden shifts 

to the requesting party to demonstrate a sufficiently compelling 

need for the journalist’s materials to overcome the privilege. At a 

minimum, this requires a showing that the information sought is 

not obtainable from another source. *** In other words, before 

disclosure may be ordered, the requesting party must demonstrate 

that she has exhausted all reasonable alternative means for 

obtaining the information.” Id. at 1296. 

*****

“[C]ompelled disclosure from a journalist must be a ‘last resort 

after pursuit of other appropriate opportunities has failed.’”

Id. at 1297 (citation omitted).

In Shoen I, the Ninth Circuit applied the privilege to bar the plaintiffs’ effort to depose a 

witness, because the plaintiffs had not taken the deposition of other persons who might have 

been able to provide the relevant information. Id. at 1296-98. 

D. Application of the privilege in this case 

As noted above, ACLU urges this Court to recognize a common law privilege and to 

apply the same absolute protection for a journalist’s unpublished information that is set out in the 

Oregon Shield Law. If the Court decides that the absolute protection found in the Oregon statute 

should not be part of federal common law, then it should apply a balancing test. That balancing 

test should be the same whether the privilege is grounded in the common law or in the First 

Amendment: that is, the burden is on the plaintiff to show that the information that she wants to 

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elicit from Sepulvado is “(1) unavailable despite exhaustion of all reasonable alternative sources; 

(2) noncumulative; and (3) clearly relevant to an important issue in the case.” Shoen v. Shoen, 

48 F.3d 412, 416 (9th Cir. 1995) (“Shoen II”). A similar list of factors is found in one of the 

cases cited by Judge Panner in the Pendergraft case, United States v. Blanton, 534 F Supp 295 

(SD Fla 1982), aff’d 730 F2d 1425 (11th Cir 1984):

“The First Amendment to the Constitution of the United States 

requires that a reporter be immune from subpoenas in criminal 

cases regarding his or her work product unless the party seeking 

the reporter’s testimony first makes a showing of sufficient interest 

and need to overcome the reporter’s constitutional privilege, and 

then only under appropriate safeguards to prevent abuse by those 

having court process available to them. [citing cases]

“In particular, to be entitled to enforcement of such subpoena, the 

party must show:

“(a) The reporter has information relevant and material to proof of 

the offense charged or the defendant’s defense;

“(b) There is a compelling need for disclosure sufficient to 

override the reporter’s privilege; and

“(c) The party seeking the information has unsuccessfully 

attempted to obtain other sources less chilling of the First 

Amendment freedoms.”

Blanton, 534 F. Supp. at 296-97.

 ACLU submits that the facts set out in the motion filed by Sepulvado and OPB show 

that the government cannot make the showing required by the Ninth Circuit in Shoen II or by the 

district court in Blanton. The government’s subpoena to Sepulvado should be quashed. 

Dated: February 22, 2017.

/s/ Charles F. Hinkle

Charles F. Hinkle, OSB 710839

Telephone: (503) 224-3380

Of Attorneys for ACLU Foundation of Oregon

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CERTIFICATE OF SERVICE

I hereby certify that on February 22, 2017, I filed a copy of foregoing document with the 

Clerk of the Court for the United States District Court– District of Oregon by using the CM/ECF 

system. Participants in this Case No. 3:16-Cr-00051-BR who are registered CM/ECF users will 

be served by the CM/ECF system.

 mailing with postage prepaid

 overnight delivery

 email

 notice of electronic filing using the CM/ECF system

DATED: February 22, 2017.

STOEL RIVES LLP

/s/ Charles F. Hinkle

Charles F. Hinkle, OSB 710839

Telephone: (503) 224-3380

Of Attorneys for ACLU Foundation of Oregon

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