§ 41.03 JOURNALIST'S PRIVILEGE

• Jurisdiction: United States

§ 41.03. JOURNALIST'S PRIVILEGE

Numerous states recognize a journalist's privilege,²⁴ which is intended to encourage the flow of information to newspapers and the electronic media.²⁵ The privilege is limited to the identity of the source.²⁶

In Branzburg v. Hayes,²⁷ the Supreme Court held that the First Amendment guarantee of freedom of the press did not require the recognition of a journalist's privilege.²⁸ In a concurring opinion, Justice Powell observed:

If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. 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 with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.²⁹

A number of federal courts, focusing on Justice Powell's concurring opinion, have recognized a qualified journalist's privilege.³⁰ This qualified privilege requires a balancing of interests, which in criminal cases may implicate a defendant's right to a fair trial. Other courts have rejected this reading of Branzburg.³¹ In addition to the First Amendment, a federal privilege for the press could be based on the common law under Rule 501.³²

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Notes:

^[24] See N.J. Stat. Ann. § 2A:84A-21.1. See also Henderson v. People, 879 P.2d 383, 393 (Colo. 1994) ("Although the newsperson's privilege is broad, the statute also sets forth several situations in which the privilege does not apply. For instance, section 13-90-119(2)(a) through (d) provides that the privilege of nondisclosure does not apply to information that is: (1) received at a press conference; (2) published or broadcast; (3) based on a newsperson's personal observation of a crime, when such information cannot be reasonably obtained through other means; and (4) based on a newsperson's observations of a class 1, 2, or 3 felony."). See generally Morele, Evidentiary Privilege for...