The De Facto Reporter's Privilege

By Koningisor, Christina | The Yale Law Journal, March 2018 | Go to article overview

The De Facto Reporter's Privilege


Koningisor, Christina, The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION                                        1180 I. THE CONVENTIONAL UNDERSTANDING                   1186    OF THE REPORTER'S PRIVILEGE   A. The Courts' Refusal To Recognize               1186   a Reporter's Privilege     1. The Historical Evolution of Courts'          1187     Treatment of Reporter's Privilege     Claims in Published Cases     2. Branzburg: The Supreme Court Speaks on       1191     Reporter's Privilege Claims     3. Post-Branzburg Confusion                     1197   B. Congress's Refusal To Establish                1198   a Statutory Shield   C. Statutory and Judicial Protection              1201   Extended by the States II. UNCOVERING THE DE FACTO                         1205     REPORTER'S PRIVILEGE   A. Judicial De Facto Privilege                    1205     1. Methodology                                  1206       a. Newspapers as Legal Sources                1207       b. Research Approach                          1210     2. Uncovering an Express Privilege              1213     3. Legal Defenses                               1215       a. The Fifth Amendment Defense                1215       b. The Loss-of-Livelihood Defense             1216       c. The Honor Defense                          1218     4. Ad Hoc Privileges                            1220       a. Reporter Testimony Held Not                1220       Material       b. Declining To Hold Reporters                1222       in Contempt       c. Lenient Treatment for Reporters            1229       After a Finding of Contempt   B. The Legislative Branch: Protecting Reporters   1232   by Legislative Discretion   C. The Executive Branch: Protecting               1237   Reporters by Prosecutorial Discretion III. THE DE FACTO REPORTER'S PRIVILEGE TODAY        1243   A. Resilient De Facto Protections                 1243   B. Weakening De Facto Protections                 1245       1. The Judicial Branch                        1246       2. The Executive Branch                       1251       3. Changing Times                             1254 IV. IMPLICATIONS OF THE DE FACTO                    1258 REPORTER'S PRIVILEGE FOR REFORM DEBATES   A. Statutory Privilege                            1258   B. Common-Law Privilege                           1262   C. Constitutional Privilege                       1264 CONCLUSION                                          1266 

INTRODUCTION

For centuries, members of the press have refused to disclose the identities of confidential sources in judicial and legislative proceedings. (1) Today, the overwhelming majority of states and a number of federal circuits extend some form of evidentiary protection to the press. (2) The rationale undergirding these protections has evolved over time, but the most common justification for the reporter's privilege today is that revealing confidential information would cause reporters' sources to dry up. This, in turn, would stem the flow of information to the press--and by extension--to the public. (3) Evidentiary privileges are generally rooted in such instrumental rationales. They reflect society's desire to promote open communication in situations where it is deemed especially valuable and where absent a privilege it is likely to be inhibited. (4)

And yet, no uniform, crosscutting federal reporter's privilege exists, leaving journalists and their sources without adequate defenses when reporters are called into federal court. Those who favor a federal reporter's privilege make the same instrumental arguments that buttress state evidentiary protections: a privilege will encourage communication between confidential sources and the press and ensure the continued flow of information to the public. Those who oppose a federal privilege argue that the press has never had one before and that there is little evidence that a privilege is needed now. (5)

The idea that no formal privilege exists--and that such a privilege is not needed--is well entrenched in the law, (6) in legal scholarship, (7) and in the minds of legislators. …

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