27 Pages Posted: 11 Dec 2007 Last revised: 5 Aug 2015
In the years since Branzburg v. Hayes, 408 U.S. 665 (1972), judicial protection of journalists' confidential sources has depended upon the case-by-case application of a three-part balancing test.
This qualified privilege approach is unsound in theory and unworkable in practice. Achieving the ultimate goal of enriching public dialogue requires an absolute privilege. This article (part of a symposium issue whose scheduled contributors include Anthony Lewis, Max Frankel, Victor A. Kovner, Joel M. Gora, and Rodney A. Smolla) supports that position with multiple lines of argument that include consideration of the lawyer-client analogy and build upon developments in law, history, journalism and public affairs in the years since Branzburg.
It argues that advocates for a federal shield statute who compromise this core principle in the interests of practicality are likely to do more harm than good. It urges them to return to the position in a favor of an absolute privilege that was taken by the press amici (but not parties) in Branzburg and by the media before Congress at the time.
All public and private mechanisms of accountability depend for their effectiveness upon the availability of information. Those who utilize such mechanisms - including law-makers, business executives who need to know about malfeasance in their organizations sooner rather than later, environmental and consumer advocates, and, yes, prosecutors - should be brought into the coalition of shield law supporters so that the journalistic privilege overcomes its current image as simply a legislative break for a favored industry and the issue is re-placed where it rightly belongs: on the pedestal of public empowerment.
Keywords: Journalist's privilege, reporter's privilege, newsman's privilege, First Amendment, Branzburg v. Hayes
Suggested Citation: Suggested Citation
Freedman, Eric M., Reconstructing Journalists' Privilege. 29 Cardozo L. Rev. 1381 (2008), reprinted in PROFESSIONAL PRIVILEGES AND JUDICIAL APPROACH (Amicus Books 2008) ; Hofstra Univ. Legal Studies Research Paper No. 07-35. Available at SSRN: https://ssrn.com/abstract=1070442