A lack of federal common-law privilege poses great danger to protection of journalist’s confidential sources when federal courts file subpoenas. Oriented by the formidable precedent in this field, federal courts typically apply majority opinion of the U.S. Supreme Court in Branzburg v. Hayes to deny a common-law privilege for reporter.
One law journalists may seek as a defense on the federal level is Federal Rule of Evidence 501 (1975). The rule says: “the common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege” (Federal Rule of Evidence 501, 1975). Rule 501 was enacted after Branzburg v. Hayes and the Supreme Court applied this rule in Jaffee v. Redmond and recognized a psychotherapist-patient privilege (Jaffee v. Redmond (518 U.S. at 1)).
However, as the United States Court of Appeals for the fourth circuit ruled in United States v. Sterling, Rule 501 and the Supreme Court’s recognition of a psychotherapist-patient privilege in Jaffee v. Redmond is not sufficient in authorizing federal courts to ignore the Branzburg case and recognize a common–law privilege for reporter (United States v. Sterling (724 F.3d 482 at 501). Statements of Judge Sentelle who is from the United States Court of Appeals for the District of Columbia Circuit and concurred in the case of subpoenaing Judith Miller exemplifies how a common-law privilege for reporter is regarded from the perspective of a federal court: the U.S. Supreme Court’s rejection of a common law privilege for reporters “stands unless and until the Supreme Court itself overrules that part of Branzburg” (In Re: Grand Jury Subpoena, Judith Miller (397 F.3d 964 at 978).