Reporter’s Privilege

The reporter’s privilege, also know as the journalist shield privilege or the newspaperman’s privilege, protects a member of the media from being forced to testify as to the identity of, or information provided by, a confidential source.

Absent a statute or rule to the contrary, a reporter—like any other subpoenaed person—has a legal duty to provide truthful and complete testimony before a court, grand jury, or other governmental entity, notwithstanding an agreement with a thirdparty to the contrary. In Branzburg v. Hayes (1972), a plurality of the Supreme Court held that the First Amendment does not protect a member of the media who has been subpoenaed, in good faith, by a grand jury. The fractured nature of the Branzburg opinion has led to uncertainty about the scope of First Amendment protection for reporters with respect to their confidential sources.

Some states have elected, as a matter of public policy, to create a qualified privilege to protect reporters from compelled disclosure as to the identity of, or information provided by, an informer. Statutes are typically limited to information that the reporter received in confidence in his or her professional capacity. Most statutes require disclosure when the information is necessary for a criminal defendant to present his or her case. States with a reporter’s privilege include California and New York.

The reporter’s privilege demonstrates the tension between the truth-seeking function of a court or other governmental body and the competing interests of protecting whistleblowers and enabling the media to investigate public and private wrongdoing.

LARRY CUNNINGHAM

References and Further Reading

• ‘‘Witnesses.’’ In American Jurisprudence. Vol. 81, 2nd ed. St. Paul, MN: Thomson/West, 2004. Black’s Law Dictionary. 8th ed. St. Paul, MN: West, 2004 (s.v. ‘‘privilege,’’ ‘‘shield law’’).
• Eclavea, Romualdo P. ‘‘Privilege of Newsgatherer Against Disclosure of Confidential Sources or Information.’’ In American Law Reports, 3rd ser. vol. 99, 37–114. St. Paul, MN Thomson/West, 1980.
• Marcus, Paul, The Reporter’s Privilege: An Analysis of the Common Law, Branzburg v. Hayes, and Recent Statutory Developments, Arizona Law Review 25 (1984): 4:815–67.
• New York Consolidated Laws Service, Civil Rights Law, vol. 40, section 79-h. Matthew Bender 2001 and 2005 supp.

Cases and Statutes Cited

• Branzburg v. Hayes, 408 U.S. 665 (1972)
• California Evidence Code, Section 1070

See also Free Press/Fair Trial; Freedom of Speech and Press: Nineteenth Century; Freedom of the Press: Modern Period, (1917–Present); Media Access to Information; Press Clause (I): Framing and History from Colonial Period up to Early National Period; Subpoenas to Reporters