Protection of news sources is a controversial legal topic, portraying a struggle between journalists who want to protect confidential sources that offer them news and legal professionals who believe reporters have no justified legal status that exclude them from testifying in the court. While journalists insist that failing to protect confidentiality sources can lead to silence on social issues of great significance, most courts do not admit they have a common-law privilege. Protection from the First Amendment on this issue has remained limited since Branzburg v. Hayes, in which the U.S. Supreme Court ruled that reporters have to reveal news sources before grand juries. However, this case also becomes a precedent that offers journalists protection of confidential sources to some extent and various shield laws adopted by most states in the U.S. are strong supports in favor of reporter’s privilege. The development of the Internet brings about new challenges to this area, raising questions about whether and who should be protected from being compelled to disclose sources of information.
Research focus of this project is mainly on shield law in the U.S. According to the Gale Encyclopedia of American Law (2010), shield laws are “statutes affording a privilege to journalists not to disclose in legal proceedings confidential information or sources of information obtained in their professional capacities,” helping journalists to challenge subpoenas. Currently, 40 states and the District of Columbia adopt such kind of laws while there is no federal law acknowledging reporter’s privilege (Mackey, 2011). As state shield laws protect journalists from being compelled to disclose their sources on a daily basis and the effort of enacting a federal shield law is constant, regulations of this area are of increasing importance in the field of protecting news sources.
Historically, most courts are reluctant to offer a common-law privilege of protecting the relationship between journalists and their sources. Since Branzburg v. Hayes, limited First Amendment privilege of reporter has been noticed. On its face, Branzburg v. Hayes is a case in which protection for reporters who refuse to reveal confidential sources is rejected. In the case, the U.S. Supreme Court ruled that three reporters who refused to testify before grand juries don’t have First Amendment privilege (Branzburg v. Hayes (408 U.S. 665 at 667)).
It is Justice Potter Stewart’s dissenting opinion, however, that gives lower courts measures to weigh reporter’s privilege in latter cases. Justice Stewart proposed that to force journalists to testify in the court, the government must prove that:
- the requested information is relevant to specific investigation
- the government has a compelling need
- there is no alternative way to acquire the information
Even though lower courts apply this three-part test, they hardly support the privilege in criminal trials, particularly in those involving grand juries. For civil trials, the protection depends on if a journalist is directly involved in a case.
Although journalists do not have a First Amendment or common-law privilege, state shield laws give journalists protections of different extent according to specific clauses in the laws. Other than shield law, journalists may also seek protection from the Fifth Amendment. A journalist can assert the Fifth Amendment privilege if he can legitimize his fear that testimony can lead to self-incrimination.