1. Protection of News Sources
Journalists are generally very reluctant to “give up” their sources of information. However, sometimes courts order them to do so in the interest of:
Protecting a criminal defendant’s rights to:
A fair trial;
Securing evidence in their favor; or
Confronting the witnesses against them.
Assisting in criminal investigations.
Determining the trust in civil cases.
There are a variety of rules which do afford some protection against being forced to divulge sources.
Under the common law, there was generally no right to keep quiet about sources unless the information was privileged.
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2. First Amendment Protections
The Supreme Court (Branzburg v. Hayes) ruled that there is no First Amendment privilege for a journalist to refuse to testify about criminal actions he had seen or heard about that he obtained for journalistic purposes.
The subpoena power and the public’s interest in preventing crime outweighed the freedom of the press here.
The Court even refused to announce a qualified (limited) privilege in this kind of case.
However, that case was an unclear case and some limited privilege may exist where the government’s interest is more limited (such as when they can get the information from another source).
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3. Court Treatment Since Braznburg
Since Braznburg, there have been many instances of reporters being forced to testify, especially if the reporter is a witness to the crime itself.
Many of these have gone to jail rather than revealing a source.
Some courts, since Branzburg, have recognized a partial privilege, requiring that a journalist be forced to testify only if:
The information is relevant to the proceeding;
There is a compelling interest in having it revealed; and
The information is not available from other sources.
This test and its application varies among jurisdictions.
Note that either side of a case (prosecution, defense, plaintiff, etc.) can use the subpoena power and that these rules apply equally to all such usages of the subpoena against journalists.
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Other Issues
In applying the limited privilege, a journalist may have to testify behind closed doors to determine whether the information is relevant and compelling.
The privilege, where it exists, applies to books, not just current events publications.
In civil cases, where the journalists are not a party, it’s hard to get a court to force them to testify because information they have is often otherwise available in the discovery process.
Also, it’s harder in a civil case to show that a compelling interest requires the disclosure.
Where the journalists are the parties (e.g., libel suits), the court is much more likely to force the testimony since their intent, and what they knew at the time of the publication, is so relevant under the New York Times v. Sullivan rule.
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5. State Rules that Protect Sources
Although the Constitution doesn’t require it, many states have enacted “shield laws” that bestow, at least, some protection on journalists from being forced to name their sources.
Some states (about a dozen) give an absolute privilege.
This means journalists can never be forced to divulge their sources.
Many other states apply more limited protections against forced disclosure.
Who is protected?
Some states apply the protection to anyone employed by a news media organization.
Other states apply it to anyone in the business of gathering information for a news outlet.
Other states limit it to reporters or broadcast or investigative journalists.
Book writers, freelance writers, academic researchers, etc., are not protected under the rules of any state.
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6. Rules Protecting Against Source Disclosure (cont.)
Confidentiality Requirement
For any protection to apply, the source must have made the statement in confidence.
However, states are split as to whether the protection applies only when the source was promised confidentiality by the reporter.
What Information is Protected?
The name of the source is, of course, at the heart of the rule.
Some states go further and protect notes relating to the source’s statement and other similar documents.
Statutes generally do NOT protect journalists from having to disclose what they’ve seen.
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7. Rules Protecting Against Source Disclosure (cont.)
Publication Requirement
Some states require that the information be published before the privilege attaches.
Where can the Privilege be Asserted?
Most protection statutes apply to both criminal and civil proceedings, including grand jury investigations, etc., although a few apply only to one or the other.
Waiver
If the source reveals himself, that obviously waives the privilege.
Jurisdictions are split as to whether the journalist can waive the privilege or if the privilege becomes waived automatically if the information becomes public.
Some states provide exceptions to the privilege when there is a compelling need (similar to the dissent in the Branzburg case).
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8. Source Shield under Federal Law
There is no federal law that institutes a source shield rule and, as discussed, the Supreme Court has refused to read one into the Constitution.
However, there still can be some federal sources for the privilege, such as:
A 1973 Attorney General report instructing the DOJ to recognize a privilege like that in the Branzburg dissent.
Under FRE Rule 403, a judge can sometimes quash a subpoena against a journalist based on a balancing test.
State law journalist privileges can be applied in federal court under FRE Rule 501, which directs federal courts to sometimes recognize state privilege rules.
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9. Other Ways to Force Disclosure
Congressional Authority
Congress can subpoena reporters and force them to reveal sources although, at times, it has respected the journalist privilege to protect sources.
Search Warrants
These can be used to seize journalists’ notes without warning and get to their sources that way.
The Supreme Court has allowed search warrants for newsrooms. However:
As a practical matter, these are rarely granted.
Various State and Federal laws limit the ability to get a warrant to search a newsroom.
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Other Rules
The Privacy Protection Act of 1980 says that to get a search warrant to search a newsroom requires:
1) There is probable cause to believe that the reporter has committed a crime; or
2) There is reason to believe that seizure of material is necessary to prevent injury or death; or
3) The materials to be seized contain information relating to national defense, classified information or restricted data.
The USA Patriot Act expanded the ability to search records of reporters, especially regarding issues of national security .
However, it does not allow a search based merely on activities that are protected by freedom of speech.
If a reporter breaches a promise to keep a source confidential and voluntarily gives up the source, the reporter can be sued by the source, often based on contract theories (e.g., detrimental reliance).
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