Chapter 8

Reporters Privelege – Protecting The Watchdogs 

“No harassment of newsmen will be tolerated… If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” – U.S. Supreme Court Justice Lewis Powell

Whether reporters can keep the identities of their sources confidential, even when that information is sought through a court order, is the concept of Reporter’s Privilege (“journalist’s privilege”); it is tenuous and depends on several conditions being met, making it a qualified privilege. The reporters privilege to withhold information likely does not exist, however, if the government can demonstrate possession, no alternatives, and/or relevance (Branzburg Test). Possession is probable cause to believe that the reporter has information clearly connected to a specific violation of law. No alternatives is when the information sought cannot be obtained by alternative means less destructive of First Amendment values. Relevance is that there’s a compelling and overriding interest in the information. Journalists may receive subpoenas that require them to reveal information in judicial proceedings, which may include the confidential names of sources of information. A qualified reporter’s privilege to refuse to disclose that information may be invoked in proceedings other than a grand jury inquiry, especially in civil proceedings. Courts generally use the three-part Branzburg test to determine whether privilege stands; the three part test consisting of possession, relevance and public interest in disclosure. The Shield Laws are state laws that protect journalists from being found in contempt of court for refusing to reveal sources. This law grants some journalists some degree of privilege. Wyoming being the exception, all other 49 states plus Washington D.C., recognize reporter’s privilege in some way or another. 

When journalists promise sources that their identities will be kept confidential in exchange for information, the journalists and their employers are legally bound to keep their word. 

Freedom of the press is not freedom to break the law.

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