The underprivileged profession: the case for Supreme Court recognition of the journalist's privilege.

Author:Nestler, Jeffrey S.

[T]he public has a right to every man's evidence, a maxim which in its proper sense cannot be denied. (1)

--Lord Chancellor Hardwicke, during debate in Parliament, 1742

[Edmund] Burke said there were Three Estates in Parliament; but in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying," it is a literal fact,--very momentous to us in these times.... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority. (2)

--Thomas Carlyle, 1840

On July 6, 2005, Pulitzer Prize-winning New York Times reporter Judith Miller was jailed for refusing to disclose the identity of a confidential source to a federal grand jury, (3) making her one of a number of journalists imprisoned recently (4) for adhering to the canons of their profession. (5) When prominent members of the media are jailed for adhering to principles that have long been an integral part of investigative reporting, it raises a question about the relationship between our judicial system and our democratic system of governance. Should the state's interest in mandating compliance with the rule of law outweigh the press's role as a Fourth Estate and check on the power of government?

This conflict between the freedom of the press and the needs of the judiciary has been present since colonial times. (6) While the press seeks to gather and disseminate information, free from government intervention, the judicial system employs all possible means to find the truth. Only on rare occasions do we prevent the judiciary from obtaining the evidence it seeks on its truth-finding mission, and on these occasions the countervailing need is always that of a higher societal interest.

The constitutional roles of the press and the judiciary are at odds when a court issues a subpoena to a journalist, and this centuries-old tension has come to a head. (7) The circumstances surrounding Judith Miller's jailing (8) demonstrate the compelling need for the Supreme Court to recognize a journalist's privilege.

This Comment maintains that the need of the press to keep certain confidences is one of the few instances involving societal interests of greater import than the judiciary's search for the truth. Therefore, journalists should have a privilege, grounded in the common law and derived from the First Amendment, to refuse to answer subpoenas issued by judicial authorities. Further, the Supreme Court, under the authority vested in the judiciary by Federal Rule of Evidence 501, should be the entity that recognizes the privilege.

The state of the law in this area has changed drastically since 1972 when the Supreme Court decided in Branzburg v. Hayes (9) that journalists, like other citizens, have a duty to provide testimony to grand juries. Almost every state and federal circuit now provides at least some type of statutory, common law, or constitutional protection for journalists. (10) In addition, the need today for the privilege is even more urgent than it was thirty years ago.

The area of journalist's privilege law is necessarily large, and this Comment will not attempt to explore every facet. (11) Instead, the Comment will focus on the jurisprudence and theory underlying the journalist's privilege and how the judicial and media arenas have significantly changed since Branzburg was decided. It will then argue that the need for uniformity in the field is overwhelming, and that the best means to this end is Supreme Court recognition of a privilege for journalists, grounded in Federal Rule of Evidence 501.

Part I explores the background of the controversy, relevant First Amendment theory, and issues associated with testimonial privileges. Part II finds support for a journalist's privilege in federal case law, state shield laws and court decisions, and fellow common law jurisdictions' actions. Part III argues on four separate grounds why a privilege for journalists is necessary in today's media and legal atmosphere. Part IV analyzes why judges are traditionally opposed to the creation of a journalist's privilege and focuses specifically on the Supreme Court's antagonism toward the issue in Branzburg. Finally, Part V makes the case for Supreme Court recognition of the privilege under Federal Rule of Evidence 501.


    1. Theory

      The phrase "freedom of the press"--regardless of the particular brand of First Amendment jurisprudence to which one subscribes--can support the creation of a privilege protecting reporters from having to reveal the nature of confidential information they received from sources who wished to remain anonymous.

      Inevitably, much of the debate surrounding a potential journalist's privilege centers on the conception of "freedom of the press" as embodied in the First Amendment. (12) Up until at least the early twentieth century, the First Amendment's protection of "freedom of the press" and "freedom of speech" was thought by most commentators to be identical. (13) Professor Melville Nimmer suggests that the Framers included both phrases in the Amendment simply to ensure protection of all types of expression, both written and oral. (14)

      If "freedom of the press" means nothing more than "freedom of written speech," then the constitutional argument for special privileges for journalists in court proceedings is indeed weak. Ordinary citizens are required to give testimony, and journalists cannot hide behind their profession to shirk their responsibility. If, instead, "freedom of the press" has a meaning separate from "freedom of speech"--say, "freedom of the media," or "freedom of newspapers, broadcasters, etc."--the journalists should arguably be afforded at least some protection in court proceedings.

      1. What Did Freedom of the Press" Mean?

        Most early commentators equated "freedom of the press" with speech. Blackstone was adamant that the press deserved no special protection, and in fact argued that government should have the power to regulate the press. (15) The Blackstonian view had a tremendous influence on the common law of press rights, (16) but has been strongly criticized in the last half-century. (17) Leading American scholars in the 1920s tried to distance the American common law on freedom of speech and press from its English predecessor. (18)

        "Freedom of the press" began to take on a meaning of its own around the time the press became more institutionalized. At the time of the country's founding, the "press" consisted of family newspapers. (19) By the early twentieth century, the occupation of "journalist" was clearly a profession, and the "press" began to more firmly occupy a place in the American constitutional scheme. (20)

      2. What Should "Freedom of the Press" Mean? (21)

        Each of the theories discussed in this Part approaches the phrase "freedom of the press" from a different angle, suggesting its importance for the press, for society, or for government. Yet in these competing First Amendment theories there is a striking similarity: each allows for recognition of a privilege for journalists.

        Some scholars argue that "freedom of the press" should be conceptually separate from "freedom of speech," and that the former accords the press distinct rights--which are more encompassing--than those associated with speech. For instance, Justice Stewart relies on the role that the press plays in American political society to bolster his argument that press freedoms are greater than speech freedoms. (22) Similarly, Justice Brennan argues that the most appropriate way to view the First Amendment is through the "structural" model, (23) which "significantly extends the umbrella of the press' constitutional protections." (24) Indeed, C. Edwin Baker worries that the government will infringe on the press's fights unless the press is given "special institutional protection." (25) And Randall Bezanson posits that a "distinct and coherent set of principles should apply to free expression claims by the press." (26)

        In contrast to the view that press freedoms are greater than speech freedoms, some commentators argue that "freedom of the press" does not provide the institutional press with any rights not available to ordinary citizens. Most courts have endorsed this view. (27) This group is split into two camps: one relies on the Blackstonian view of the common law and original intent of the Framers to justify its position that "press" in the First Amendment simply means "written expression" and that the press is not afforded any special constitutional protection. (28)

        The other camp walks a more delicate interpretive line: it argues for press protections but not at the expense of added press responsibilities. (29) If the press receives special rights because it is a "public agent," then the public can theoretically assert control over the press. (30) And the most practicable means of the public asserting this control is through the government, which can more easily implement such mechanisms. (31) Paradoxically, granting the press special rights under the First Amendment could actually lead to the press's loss of independence from the government. (32)

        Thomas Emerson and Laurence Tribe subscribe to the view that special press protections are tied to special press responsibilities. Emerson argues that freedom of the press is just one component in the protection afforded by the First Amendment to "an integrated system of freedom of expression." (33) Tribe argues that the press as an institution does not need "extraordinary constitutional protection," but that the interplay between the First and Fourth Amendments creates a unique situation that requires more sensitivity to journalists' role in society. (34) Tribe's argument, though, rests on an ill-defined middle ground: while the press should not have special protections, it should also not be regulated the same as an ordinary type of...

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