Reporter’s (Lack of) Privilege

Legally, lawyers are not forced to disclose incriminating information about their clients. This goes for doctors as well. These rights are granted to individuals with these careers so that the law does not interfere with their ability to carry out their job. One would think that journalists may be granted a similar right, so that they can gather critical information that has the potential to benefit the public exponentially, but this isn’t entirely the case. In the United States, journalists do not have federal protections that would allow them to avoid disclosing information about their sources, or the identity of their sources. This right has not been legally protected by the Supreme Court. In Chapter 6 of Lewis’s Freedom for the Thought that We Hate, the author describes the court’s stance. 

The Supreme Court has only heard one case regarding “reporter’s privilege”, Branzburg v. Hayes, in 1972. Branzburg was a Kentucky journalist who refused to give the names of his sources on a piece he wrote about cannabis usage to law enforcement officials. He argued that the first amendment protected him from having to provide the names of his sources. Although the court was split nearly evenly, they ruled 5-4 against Branzburg, and have declined to hear any other cases relative to this subject since.

“Reporter’s privilege” is more complex than physician-patient confidentiality and attorney-client privilege. For one thing, it is actually pretty difficult to determine who “counts” as a reporter, especially in the age of social media. Who is deserving of “reporter’s privilege”?

That being said, I do believe that it is not only practical (variation amongst state level shield laws makes things unnecessarily complicated), but vital to the well-being of our nation for the concept of journalistic privilege to be established federally. If people are not able to feel safe confiding in journalists, important stories will go untold. And if journalists fear that they will be forced between having to betray their sources and face jail time, they will likely be reluctant to cover stories where any illegal activity is involved- which are often the stories that the public needs to hear the most.

One thought on “Reporter’s (Lack of) Privilege

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  1. I think an important issue that we must consider in this instance is whether a Reporter’s privilege is something guaranteed by the First Amendment as opposed to one created by statute. The Court has refused to identify such a privilege as having grounding in the First Amendment press clause. It is well within the right of Congress to establish such a protection. They have not done so,partly because of the difficulties you identified in determining who is and who is not a journalist. Good work,


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