This Note will first explain, in Part I, why journalists need to be protected, and detail the history of reporters invoking a reporter’s privilege in court to protect themselves from revealing their sources or information. It will then discuss Branzburg v. Hayes in Section II.A. Section II.B briefly examines circuits’ receptivity to statutory or constitutional protections of reporters. The Supreme Court has stated that Congress could pass a law to protect reporters. However, while multiple federal shield laws have been proposed, none have been passed. The most recent proposal occurred in 2013, and as of December 2013, the Senate version was voted out of committee. Section III.A will address Congress’s attempts at enacting a statutory protection, specifically focusing on who would be covered in proposed bills. Branzburg did not foreclose the possibility of state statutory protections, and thirty-nine states plus the District of Columbia have codified a reporter’s privilege in their shield laws. This Note will briefly examine how states codify reporters’ protections in Section III.B. Section III.C then considers the executive branch’s self-restriction of subpoenaing reporters, which appears in the Code of Federal Regulations.
This Note argues that while the constitutional debate surrounding a reporter’s privilege continues, a federal shield law is needed to provide coverage at least until the Supreme Court recognizes First Amendment protection for reporters. A shield law can provide more uniform protections to a broad range of journalists, including digital or citizen journalists, which are critical to any current iteration of a reporter’s privilege. Current state protections are not sufficient because they do not protect reporters being prosecuted under federal law, which is necessary for a more comprehensive coverage that encourages meaningful reporting of nationally relevant material. As discussion over a statutory protection grows, it is important to create a statute that is relevant to the changing media landscape in which digital and citizen journalists are increasingly breaking news and investigating stories. Thus, this Note, in Part IV, addresses the inadequacies of current protections and proposes the solution of a federal shield law, emphasizing the broad number of people, outside of traditional, institutional media, that the shield law should protect. The law should focus on covering those whose actions demonstrate that they are engaging in journalism. The protection should not only be extended to an individual associated with an institutional media entity. The law should cover digital or citizen journalists using Internet news sources, or even social media sites, as vehicles to publish their work. This solution is practical in light of the murky constitutional landscape that does not offer broad enough protection to the growing number of citizen and digital journalists. Although individuals should receive shield law protection from revealing sources in order to encourage investigative journalism, this should not be an absolute protection, but rather a qualified privilege subject to codified exceptions for security and safety issues.
Kathryn A. Rosenbaum,
Protecting More than the Front Page: Codifying a Reporter’s Privilege for Digital and Citizen Journalists,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss3/10