Rethinking Reporter's Privilege

Abstract

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused 'privilege' that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a variety of ways, commentators and scholars have largely ignored its most fundamental shortcoming: By making the reporter the nucleus of the constitutional inquiry, the Court has unnecessarily complicated an analysis that has a much more natural doctrinal starting point. This Article argues that the Court should abandon its reporter-based approach to confidential-source cases and replace it with a constitutional inquiry that focuses on the anonymous source. It suggests that analyzing confidential-source cases based on the anonymous speech rights of sources rather than on the information-flow or news gathering rights of the reporters will more fully acknowledge the scope of First Amendment interests at stake and will eliminate the need to define who is a 'reporter' for purposes of the privilege - a task that has become complicated to a degree of near impossibility as technological changes alter the primary mechanisms for gathering and disseminating news.

Keywords: First Amendment, constitutional law, anonymous speech, reporter's privilege, journalism, confidential sources