As the opinion editor for my school’s newspaper, I expect to come across writers that want their work underneath the “anonymous” by-line. Though, I never fully considered the significance of that protection. Especially for the writers that take a risk in sharing stories.
I received a submission once about the life of a DACA recipient. With the current threat that DACA is facing, this person naturally, wanted to be anonymous.
I informed the writer that if higher powers needed to know their identity, they may be able to get it. I continued to say that of course, the newspaper would fight to protect them as much as any student-run newspaper could, but the possibility still existed.
What this anecdote brings to mind is journalistic privilege.
The idea that journalists are protected under the First Amendment from testifying against their anonymous sources has been present in state courts and even, the Supreme Court. The first of such cases was the Branzburg v. Hayes case. Reporter Paul Branzburg was jailed for not testifying against the young people he wrote about who was involved with hashish.
After Branzburg, several other reporters were also jailed for reluctance to testify against sources. They held that the First Amendment protected the Press, which was interpreted as protecting the rights of journalists and their confidentiality.
Today there is still a hazy understanding of how far journalistic rights go. If a journalist exercised their privilege in a way that prevented law enforcement from catching a criminal, like what Myron Farber did in her story about a doctor who murdered his patients, then one would naturally want the reporter to reveal who that person is.
Even though that is the conclusion many of us come to, answers to First Amendment cases are seldom that simple. Even though, as Anthony Lewis writes, “the question of testimonial privilege for journalists is really one of public policy than constitutional law,” there can still be major concerns about prosecuting the journalist for information gathering.
When journalists are always required to reveal their sources on demand, it can deter sources from giving journalist critical information. Especially when that information is deliberately hidden from the public. The Watergate scandal only happened because there were sources that could take a risk under the name of anonymity.
If sources are not willing to talk to the press because the law requires journalists to reveal their sources, then an argument can be made for “prior restraints” on the press, that is, in fact, a violation of the First Amendment.
As a journalist, I believe it is a privilege to enter spaces and obtain information with a layer of trust and confidentiality, but I also believe that my first privilege is serving the public. If I knew facts about an individual who is a threat to society, then I think it is integral to the journalistic profession to give that information to the public. However, I also believe that if the person is taking a risk to give me information with the intent on exposing corruption or generally important public information, I would protect them to my best abilities.
I don’t believe in journalistic privilege so much as I believe in doing right by the profession and the people. If the public is not in jeopardy from knowing a source, then I wouldn’t find it in reason to speak.