ARTICLE CONTENTS INTRODUCTION 1180 I. THE CONVENTIONAL UNDERSTANDING 1186 OF THE REPORTER'S PRIVILEGE A. The Courts' Refusal To Recognize 1186 a Reporter's Privilege 1. The Historical Evolution of Courts' 1187 Treatment of Reporter's Privilege Claims in Published Cases 2. Branzburg: The Supreme Court Speaks on 1191 Reporter's Privilege Claims 3. Post-Branzburg Confusion 1197 B. Congress's Refusal To Establish 1198 a Statutory Shield C. Statutory and Judicial Protection 1201 Extended by the States II. UNCOVERING THE DE FACTO 1205 REPORTER'S PRIVILEGE A. Judicial De Facto Privilege 1205 1. Methodology 1206 a. Newspapers as Legal Sources 1207 b. Research Approach 1210 2. Uncovering an Express Privilege 1213 3. Legal Defenses 1215 a. The Fifth Amendment Defense 1215 b. The Loss-of-Livelihood Defense 1216 c. The Honor Defense 1218 4. Ad Hoc Privileges 1220 a. Reporter Testimony Held Not 1220 Material b. Declining To Hold Reporters 1222 in Contempt c. Lenient Treatment for Reporters 1229 After a Finding of Contempt B. The Legislative Branch: Protecting Reporters 1232 by Legislative Discretion C. The Executive Branch: Protecting 1237 Reporters by Prosecutorial Discretion III. THE DE FACTO REPORTER'S PRIVILEGE TODAY 1243 A. Resilient De Facto Protections 1243 B. Weakening De Facto Protections 1245 1. The Judicial Branch 1246 2. The Executive Branch 1251 3. Changing Times 1254 IV. IMPLICATIONS OF THE DE FACTO 1258 REPORTER'S PRIVILEGE FOR REFORM DEBATES A. Statutory Privilege 1258 B. Common-Law Privilege 1262 C. Constitutional Privilege 1264 CONCLUSION 1266 INTRODUCTION
For centuries, members of the press have refused to disclose the identities of confidential sources in judicial and legislative proceedings. (1) Today, the overwhelming majority of states and a number of federal circuits extend some form of evidentiary protection to the press. (2) The rationale undergirding these protections has evolved over time, but the most common justification for the reporter's privilege today is that revealing confidential information would cause reporters' sources to dry up. This, in turn, would stem the flow of information to the press--and by extension--to the public. (3) Evidentiary privileges are generally rooted in such instrumental rationales. They reflect society's desire to promote open communication in situations where it is deemed especially valuable and where absent a privilege it is likely to be inhibited. (4)
And yet, no uniform, crosscutting federal reporter's privilege exists, leaving journalists and their sources without adequate defenses when reporters are called into federal court. Those who favor a federal reporter's privilege make the same instrumental arguments that buttress state evidentiary protections: a privilege will encourage communication between confidential sources and the press and ensure the continued flow of information to the public. Those who oppose a federal privilege argue that the press has never had one before and that there is little evidence that a privilege is needed now. (5)
The idea that no formal privilege exists--and that such a privilege is not needed--is well entrenched in the law, (6) in legal scholarship, (7) and in the minds of legislators. (8) In a recent congressional debate over a proposed federal shield, for example, one legislator opposed the bill on the basis that "[t]he press has flourished for over 200 years without a Federal privilege." (9) No privilege has ever existed, the congressman reasoned, and the press functions perfectly well. So why create a new privilege now?
This view, which has proven to be a powerful force opposing a federal privilege, relies on two assumptions. (10) The first is that the absence of a federal privilege has not impeded the flow of information to the press. This is, of course, a difficult assertion to prove or disprove: it is impossible to determine how many more confidential sources would have come forward had a privilege existed. The second assumption is that the behavior of confidential sources is driven primarily by the formal protections enshrined in the law. Yet it seems equally likely that confidential source behavior is driven not only by whether a formal privilege exists, but also by whether such protections are extended in practice. (11) This Article argues that--although the press in the United States does not enjoy a formal federal privilege--judges, legislators, and prosecutors have long sought to protect reporters through more informal measures. Taken together, these protections create a 'de facto' reporter's privilege. (12)
The idea that judges and policymakers might exercise their discretion to protect reporters and their sources, even absent a formal privilege, is not wholly new. Journalists themselves raised this possibility in their coverage of early reporter's privilege disputes. Throughout the nineteenth century, newspapers eagerly covered contempt hearings (13) for reporters who refused to reveal a confidential source. Members of the press often speculated that judges went out of their way to protect reporters by releasing them or by otherwise shielding them from testifying. (14) This theory made sense: judges who imprisoned journalists often drew intensely negative media coverage. (15)
The idea also surfaced in the context of legislative disputes over a statutory shield (16)--particularly in the immediate aftermath of Branzburg v. Hayes, (17) the Supreme Court's canonical 1972 decision rejecting a First Amendment-based reporter's privilege. Senator Edward Kennedy, for example, argued in 1973 that "throughout our history, reporters have enjoyed a de facto privilege from subpoena in grand jury proceedings, a privilege of the sort consistently afforded to doctors, lawyers, priests, husbands and wives, and others whose special relationships of confidentiality have long received generous protection of society." (18)
Yet this idea largely failed to migrate into the legal literature. One notable exception--Wright and Graham's treatise on federal procedure--reported that "it has been suggested that the ritual jailing of reporters for short terms was a form of fiction in which journalists were granted a de facto privilege by sympathetic judges who were unwilling to diminish their own powers by the creation of a de jure privilege." (19) Some student notes from the 1950s also took up this theme. One note colorfully observed that judges' treatment of reporter's privilege claims "could lead one to conclude that the contempt power is being exercised only as a matter of ritual much as a reluctant father administers a spanking in a this-will-hurt-me-as-much-as-you frame of mind." (20)
More recent scholarship addressing the reporter's privilege is largely forward-looking: it addresses how to define who qualifies for a privilege in the age of bloggers and WikiLeaks, or whether the reporter's privilege can be reconceptualized to provide more coherent and robust protection for sources or for the press. (21) Legal scholars have also observed that the Department of Justice's (DOJ) voluntary guidelines limiting the federal government's ability to subpoena reporters offer many of the protections that would likely be introduced with a legislative shield. (22) But few legal scholars have focused on the pre-Branzburg history of the reporter's privilege. (23)
This Article fleshes out that history. It demonstrates that beneath the reported case law, there exists a richer and more complex story about the reporter's privilege. It brings to light the full ecosystem of protections--both formal and informal, and from across all three branches of government--that have long worked to protect the press. Illuminating this de facto reporter's privilege will allow lawyers, judges, and policymakers to better appreciate the stakes of creating a new constitutional, statutory, or federal common-law privilege.
Part I outlines the black-letter law treatment of the reporter's privilege. It reviews the formal approach to reporter's privilege cases evident in the case law, in congressional failure to enact a statutory shield, and in the establishment of widespread state-level protections. Part II fleshes out the contours of the de facto reporter's privilege. By examining published and unpublished cases, (24) as well as newspaper stories, autobiographies, and legislative materials, it traces the informal--but functional--protections that have long been extended by the three branches of government. Part III examines the state of this de facto privilege today in order to shed light on whether these informal protections historically extended to reporters remain available to the modern press. And Part IV examines the implications of the de facto reporter's privilege for contemporary debates around formalization. It imports the de facto privilege lens into ongoing discussions over the enactment of a statutory shield and over the establishment of a constitutional or federal common-law privilege and demonstrates how this history can be used to bolster the case for a formalized shield.
THE CONVENTIONAL UNDERSTANDING OF THE REPORTER'S PRIVILEGE
The prevailing view of the history of the reporter's privilege is that both the judiciary and Congress have routinely rejected the press's claim to a privilege. The judiciary, the story goes, has consistently rejected reporter's privilege claims in court, culminating in the Supreme Court's decision in Branzburg. Meanwhile, Congress has failed repeatedly to enact a statutory shield. By contrast, the overwhelming majority of states have established robust, state-level judicial and legislative protections. This Part traces this story and outlines the contours of the formal protections extended or denied to the press.
The Courts' Refusal To Recognize a Reporter's Privilege
Until the mid-twentieth century, courts routinely denied the press's assertion of an evidentiary privilege. (25) This narrative became more...