After the First Amendment Fails: The Newsmen’S Privilege Hearings of the 1970s

Abstract

This article explores the debates over eighty-six “newsmen’s privilege” bills introduced in the U.S. House of Representatives between 1972 and 1975 in the immediate aftermath of the U.S. Supreme Court’s ruling in Branzburg v. Hayes. The article examines archival files and congressional records of this largely ignored slice of journalist’s privilege history and identities the primary policy differences, the motives and perspectives of key advocates, and reasons for a bill’s failure to become law. This research dissects the policy arguments for and against a privilege and examines in detail the four major areas of policy disputes: the range of protections from so-called absolutist to qualified bills, the definitional problem of who is a journalist, protection of only confidential information or all newsgathering material, and whether a federal privilege statute should “pre-empt” state laws. In evaluating the policy and constitutional arguments raised and debated in Congress, this research also provides historical context to contemporary debates over a federal journalist’s shield law.