Rethinking reporter's privilege.

• Author: Jones, RonNell Andersen
• Position: Introduction to II. An Anonymous-Speech Analysis, p. 1221-1250

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case--decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way--produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a variety of ways, commentators and scholars have largely ignored its most fundamental shortcoming: by making the reporter the nucleus of the constitutional inquiry, the Court has unnecessarily complicated an analysis that has a much more natural doctrinal starting point. This Article argues that the Court should abandon its reporter-based approach to confidential-source cases and replace it with a constitutional inquiry that focuses on the anonymous source. It suggests that analyzing confidential-source cases based on the anonymous-speech rights of sources rather than on the information-flow or newsgathering rights of the reporters will more fully acknowledge the scope of First Amendment interests at stake and will eliminate the need to define who is a "reporter" for purposes of the privilege--a task that has become complicated to a degree of near impossibility as technological changes alter the primary mechanisms for gathering and disseminating news.

TABLE OF CONTENTS INTRODUCTION I. THE MOTIVATIONS FOR AND CONSEQUENCES OF THE BRANZBURG APPROACH A. A Doctrinal Focus on the Reporter 1. Historical Momentum 2. The Litigation of Branzburg B. The Doctrinal Aftermath of Branzburg 1. The Need to Define "Reporter". 2. Difficulty of Weighing the Deterrence Factor and Assessing the Necessary Scope of the Privilege C. The Risks of Instability in Reporter's Privilege Doctrine II. AN ANONYMOUS-SPEECH ANALYSIS A. Anonymous-Speech Doctrine B. Potential Perils of Anonymous Speech III. APPLYING THE DOCTRINE TO CONFIDENTIAL NEWS SOURCES A. Utilizing the Anonymous-Speech Doctrine in a Confidential-Source Situation B. A More Appropriate Recognition of the Values Served by Confidential-Source Protection C. The Assertion of the Right by Either the Source or the Reporter 1. Closeness of Relationship 2. Practical Impediment D. Anonymous Speech Online: A Useful Analogy 1. Individual and Third-Party Standing in Cases of Anonymous Online Posters 2. Substantive Application of Anonymous-Speech Doctrine in Online-Poster Cases CONCLUSION INTRODUCTION

Four decades ago, the U.S. Supreme Court made its first and only inquiry into what journalists see as the First Amendment issue most critical to the flow of information in our democracy (1): the degree of protection that should be afforded to newsgatherers who promise confidentiality to sources. (2)

The case was Branzburg v. Hayes, (3) and it was decided at a moment in American history in which the role of an investigative press--and of information provided to the press by confidential sources--was coming to the forefront of public consciousness in a new and significant way. (4) First Amendment and media-law scholars of the day foresaw the indispensable function that journalists and their unidentified sources would play in revealing government corruption, uncovering corporate misbehavior, and illuminating injustices. (5) But they also recognized the inherent complexity in striking a balance between the benefit of the anonymous provision of socially important information and the risk that confidentiality in newsgathering might impede future legal investigations--for example, if reporters later refused to share information perceived as critical to civil or criminal cases.

In response to these tensions, proposals developed for a so-called "reporter's privilege" (6)--a legal construct that, when successfully invoked, would make the news reporter an exception to "the longstanding principle that 'the public ... has a right to every man's evidence.'" (7) Now embodied in state law by statute, constitutional provision, court decision, or court role in nearly all fifty states, (8) the privilege permits a reporter, under defined circumstances, to refuse to respond to a subpoena that seeks information the reporter received confidentially in the newsgathering process, and to avoid facing the contempt citation that might otherwise result from such a refusal. (9) These laws, arising as they did from the heightened awareness of the admirable role of the investigative press, are largely tailored to serving that role. They presume that reporters need this unique treatment in order to fulfill their "public-serving function of producing important news stories." (10) Thus, although both the reporter and the confidential source are essential to the widespread distribution of that publicly useful information, the doctrinal focus has almost exclusively been on the reporter.

Indeed, as the doctrine's very moniker makes clear, reporter's privilege laws aim to ensure the anonymous provision of socially important information by protecting the newsgatherer to whom that information is provided. The state statutory or common-law right belongs to the reporter herself--a privilege attached to a given occupational status, based on the public good produced by those holding that status. (11)

It is perhaps no surprise, then, that when the Supreme Court in Branzburg tackled the question of whether the privilege should be recognized as a federal constitutional matter, it conducted its First Amendment analysis through this same lens. In that seminal case, the petitioners asked the Court to acknowledge a First Amendment-based reporter's privilege--that is, to hold that the U.S. Constitution guarantees a reporter the right to keep the confidence of a would-be anonymous news source when the reporter is later subpoenaed to testify regarding the confidential information. (12)

While the split decision in Branzburg narrowly refused to recognize such a privilege, (13) a First Amendment-based reporter's privilege nonetheless was launched by the case, as federal courts in the wake of Branzburg expressed a willingness to acknowledge the qualified privilege proposed by the Branzburg dissent, at least in cases that were not on all fours with that case's facts. (14) In this way, a constitutional reporter's privilege doctrine emerged that is now recognized in some form in nearly all federal jurisdictions. Again, the courts' inquiries center on the journalists' rights to gather news and report it, rather than on any rights of the would-be anonymous sources. (15)

What has emerged post-Branzburg is a doctrine that is uniformly regarded as confusing, resulting in a "privilege" that is ambiguous, (16) inconsistent, (17) and the subject of significant criticism. (18) And although the post-Branzburg privilege has been recognized as flawed in a variety of ways, (19) commentators and scholars have largely ignored what may be its most fundamental doctrinal shortcoming. By making the reporter the nucleus of the constitutional inquiry, the Court has unnecessarily complicated an analysis that has a much more natural doctrinal starting point, and in so doing has produced a test that is both unprincipled and impractical.

This Article argues that the Court should abandon its reporter-based approach to confidential-source cases and replace it with a constitutional inquiry that focuses on the source whose name or other identifying information the reporter seeks to keep anonymous. Analyzing confidential-source cases based on the anonymous-speech rights of sources, rather than on the information-flow or newsgathering rights of the reporters, will have at least three salutary effects. First, it will eliminate the need to define who is a "reporter" for purposes of the privilege. (20) Second, it will enable the Court to abandon its complex and necessarily speculative investigations into how great a contribution the press makes to public dialogue (and what degree of privilege is necessary to ensure that continued contribution), and allow it to draw instead upon deeply rooted and well-defined principles regarding the protection of anonymous speech, which have been acknowledged since the nation's founding. (21) Finally, and perhaps most importantly, this approach will acknowledge the true breadth of interests and First Amendment values at stake in the confidential-source dynamic. It will allow the source to assert her own First Amendment rights, but it will also permit reporters to take advantage of third-party standing doctrine when--as is virtually always the case--the reporter argues for anonymous-speech rights that in fact belong to someone other than herself. (22) In so doing, this approach will continue to recognize the First Amendment's public-information values and the vital role of newsgathering, but without slighting the theoretical importance of the individual-liberty interest of the original speaker. Indeed, a wave of recent cases involving media assertions of third-party standing in somewhat analogous circumstances highlights the workability of this approach. In these cases, involving anonymous comments about completed stories posted on online media sites, courts have already essentially embraced this sensible analysis. (23)

Part I describes the historical trajectory and motives of the journalism industry that combined to lead the Court down a reporter's privilege path that considers the rights of the reporter rather than the rights of the speaker whose name the reporter refuses to reveal. It then addresses the analytical drawbacks and practical complexities that this reporter-focused approach has produced.

Part II proposes a new doctrinal approach that considers the anonymous-speech rights of the reporter's source...