24 Pages Posted: 5 May 2008
The effort to investigate and discover who leaked the identity of CIA agent Valerie Plame to journalist Robert Novak and other prominent reporters, and the subsequent prosecution of key White House aide, Scooter Libby in connection with that investigation, put on the national front burner the question of whether journalists have a right to protect their confidential sources. That has been a prominent First Amendment question ever since the Supreme Court's 1972 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), where a bare 5 to 4 majority broadly rejected First Amendment protection for confidential sources, though a concurring opinion left the door open to granting relief on a case-by-case basis. Since that time, the press has advanced its arguments on three fronts (1) persuading courts to recognize a qualified journalistic privilege on the basis of the Branzburg concurring opinion, (2) lobbying for so-called shield laws at the state level, and (3) seeking a federal shield law as well. The first tack had great success for about three decades, but then suffered two significant recent setbacks in the form of the opinion in the Plame matter, sharply rejecting constitutional protection, and another skeptical ruling by a very prominent appeals court judge. The state legislation route has successfully resulted in a doubling of the number of states that give journalists statutory protection. Finally, the federal legislative path has led, at this writing and quite surprisingly, to the strongest prospects in 35 years of passage of a strong federal shield law. This article surveys these various trends, from Branzburg through the federal shield bill, and concludes with some recommendations for journalists as well as lawyers as to the best way to establish the credibility of their claims.
Keywords: first amendment, constitution, journalism, shield law
JEL Classification: K19
Suggested Citation: Suggested Citation
Gora, Joel M., The Source of the Problem of Sources: The First Amendment Fails the Fourth Estate. Cardozo Law Review, Vol. 29, No. 4, 2008; Brooklyn Law School, Legal Studies Paper No. 107. Available at SSRN: https://ssrn.com/abstract=1128368