Blake Lively's subpoena against a popular YouTube channel survives motion to quash

Andy Signore of Popcorned Planet Inc. was subpoenaed in the Lively v Wayfarer case.

As part of her legal battle with Justin Baldoni and Wayfarer Studios, Blake Lively issued subpoenas against several YouTubers, alleging that they were part of a smear campaign against her. Popcorned Planet Inc.'s attempt to quash Lively's subpoena for his communications to Wayfarer was based on journalist's privilege has been denied. Florida Middle District Judge Lindsay Griffin found that motion to quash was denied based on:

Andy Signore is not a professional journalist
"Popcorned Planet" is not a news agency
The communications sought are not all covered by journalist privilege
The privilege log he produced is inadequate on multiple levels therefore the court may waive privilege.

The judge also found that even if the material was covered by journalist privilege Lively would overcome it due to the inability to obtain the material from defendants in Lively v Wayfarer. And that the material reviewed in camera (by the judge) is directly relevant to her claims that Wayfarer parties engaged in defamation and seeding negative narratives on traditional and social media.

Documents regarding this can be found here.

Below is the comment the channel had regarding the failed motion to quash.

Andy Signore discusses his 'fears' for this ruling against 'free speech'

Journalist's Privilege

Judges determine who qualifies as a journalist for journalist's privilege based on factors like the intent to publicly disseminate information and the nature of the individual's work. This can include traditional reporters as well as non-traditional news gatherers, as long as they are engaged in collecting news for public dissemination.

Judges assess who qualifies as a journalist based on various legal standards and precedents. The concept of journalist's privilege allows reporters to protect their sources and information from being disclosed in legal proceedings. This privilege is not uniformly defined across jurisdictions, leading to different interpretations.

Factors include, intent to disseminate, type of medium, nature of the information and court precedents for a judge when determining who is considered to be a journalist. Judges weigh these factors to determine if an individual qualifies for journalist's privilege, balancing the need for press freedom with the interests of justice.

Traditional vs. Non-Traditional

Courts have expanded the definition of a journalist beyond traditional media to include bloggers, documentary filmmakers, and others who gather news for public dissemination.

Qualified Privilege

Most jurisdictions recognize a qualified privilege, meaning that while journalists can protect their sources, this privilege can be overridden if the court finds a compelling need for the information.

Cases of Note

von Bulow by Auersperg v. von Bulow, 811 F.2d 136 (2d Cir. 1987)

On appeal from order entered in the Southern District of New York, 652 F.Supp. 823, John Walker, Jr., District Judge, holding witness in civil contempt, the Court of Appeals, Timbers, Circuit Judge, held:

(1) that subpoenaed documents were not protected from discovery by journalist's privilege, and

(2) that documents were not protected by attorney-client privilege.

This ruling determined:

Federal law of privilege controlled question of whether to recognize journalist's privilege, where evidence sought from witness was relevant to both federal and state claims.
Burden is on party claiming protection of privilege to establish those facts that are essential elements of privileged relationship.
Otherwise discoverable documents may not be converted into documents protected by privilege by taking some subsequent action with respect to them.

Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972)

Certiorari was granted to review judgment of the United States Court of Appeals for the Ninth Circuit, upholding refusal of newsman to appear and testify before grand jury with respect to confidential sources, and judgments of the Court of Appeals of Kentucky, at and in an unreported case, and the Supreme Judicial Court of Massachusetts, rejecting claimed rights of newsmen to refuse to testify before grand juries with respect to confidential sources.

The Supreme Court, Mr. Justice White, held that requiring newsmen to appear and testify before state or federal grand juries does not abridge the freedom of speech and press guaranteed by the First Amendment; and that a newsman's agreement to conceal criminal conduct of his news sources, or evidence thereof, does not give rise to any constitutional testimonial privilege with respect thereto.

This ruling determined:

When a newsman is subpoenaed to testify before a grand jury, the First Amendment does not protect his agreement to conceal the criminal conduct of a news source, or evidence thereof.