Reporter's Privilege

• Author: Benno C. Schmidt
• Pages: 2199-2200

Page 2199

The reporter's privilege issue posed in BRANZBURG V. HAYES (1972) is a microcosm of the difficulties of both journalism and law in accommodating traditional procedures and principles to the development of widespread disenchantment and disobedience in American society. For knowledge about dissident groups we must depend on the

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efforts of journalists, efforts that will be impeded if the subjects believe that reporters' information will become available to law enforcement agencies. Yet the legal system has important interests in prompt detection and prosecution of crimes. Anglo-American judges have long boasted that no person is too high to escape the obligation of testifying to a GRAND JURY. This obligation is an important guarantee of equality in the operation of criminal law. Thus, courts have historically been unsympathetic to claims that certain kinds of information should be privileged from disclosure before the grand jury. Only the RIGHT AGAINST SELF-INCRIMINATION and the attorney-client privilege have achieved general recognition from American courts.

In Branzburg, three cases joined for decision, three reporters had declined to provide requested information to a grand jury. The reporters argued for a special privilege, arguing that compulsory testimony would significantly diminish the flow of information from news sources.

The opinions of a closely divided Supreme Court spanned the spectrum of possible FIRST AMENDMENT responses. Justice BYRON R. WHITE'S majority opinion rejected the notion of a journalist's claim of privilege, calling the journalists' fear speculative. Even assuming some constriction in the flow of news, White argued, the public interest in investigating and prosecuting crimes reported to the press outweighs that in the dissemination of news about those activities when the dissemination rests upon confidentiality.

After seemingly rejecting both the theoretical and the empirical arguments for a journalist's privilege, the majority opinion concluded with an enigmatic suggestion that the door to the privilege might not be completely closed. "Newsgathering," the majority noted obliquely, "is not without its First Amendment protection": "[G]rand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to...