When is and isn’t it okay to ask a journalist to divulge their sources in court? Should the press be allowed to have special privileges? Who even is the press, anyway? In chapter six of his book Freedom for the Thought That We Hate, Anthony Lewis talks about the complicated nature of reporter’s privilege when it comes to testifying before a court of law.
He talks about ‘50s New York Herald Tribune Columnist, Marie Torre, who wrote a negative column about Judy Garland. Torre refused to share the name of her source from CBS when Garland sued for libel and she actually briefly went to jail for it. He also talks about Btanxburg v. Hayes and it’s complicated outcome. Paul Branzburg, a Louisville reporter, refused to testify and disclose his sources before state grand juries investigating drug crimes that he wrote about. The supreme court ruled that Branzburg had no special privilege and had to testify when called upon like everyone else. However, the majority opinion and multiple dissenting opinions suggested that there were exceptions and complications when it came to privileges or the lack thereof for reporters.
Lewis cited that one of the major reasons why it was difficult to create a constitutional privilege for the press was because it was hard to define the press. Who would be granted this privilege if it did exist? And if determining who was a member of the press was difficult in 1972, imagine the challenges of 2019. The internet has allowed for a massive increase in news outlets and independently run blogs. Media and information in general is everywhere and easily acceptable to everyone. Anyone can say and post anything on the internet, so would that mean they could claim to be exempt from testifying if what they published was libelous or even linked to a crime? If the “press” have these privileges, what does that mean in today’s world?
I can’t help but think about influencers and Youtubers spreading information to their massive online followings, With the help of the internet, some of these individuals are reaching tens of millions of people, who love their content and trust what they say. And there’s no shortage of controversial content on YouTube and Instagram — think about cancel culture and angry uninformed comments on posts and videos that seem unoffensive. One thing that keeps coming to my mind is Youtuber, Shane Dawson’s conspiracy theory videos where he jokes about being sued by the companies he talks about. But if he was sued, as a member of the media, would he be protected by shield laws? Or would he have to divulge his sources?
If Marie Torre’s column on Judy Garland came out today as a blog or Youtube video, would things have played out differently? Would Torre have reached more people? Would she even have been considered part of the press? It seems like this is an issue that still has a lot of grey areas.