This document discusses the history of conflicts between journalists' right to protect confidential sources and legal demands that they reveal those sources. It notes an early case from 1848 where a journalist was jailed for refusing to name a source. More recently, the 1972 Supreme Court case Branzburg v. Hayes rejected a reporter's privilege, though some judges advocated for a balancing test. While no federal shield law exists, about 30 states have passed their own laws providing some protections, though none are absolute. The boundaries of journalists' rights remain unclear and subject to ongoing legal debate.

1. Protecting sources
A constitutional clash — with
the media on the losing end

2. An old dilemma
• In 1848, John Nugent of the New York
Herald was held for refusing to identify a
source to the Senate

3. An old dilemma
• In 1848, John Nugent of the New York
Herald was held for refusing to identify a
source to the Senate
• The Herald gave Nugent a raise

4. An old dilemma
• In 1848, John Nugent of the New York
Herald was held for refusing to identify a
source to the Senate
• The Herald gave Nugent a raise
• After a month, the Senate gave up

5. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”

6. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”
• All must testify before the grand jury

7. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”
• All must testify before the grand jury
• The First Amendment belongs to everyone,
not just the press

8. Another clash over the Sixth
• “[T]he accused shall enjoy the right … to
have compulsory process for obtaining
witnesses in his favor”
• All must testify before the grand jury
• The First Amendment belongs to everyone,
not just the press
• In practice, demands for sources generally
come from the government

9. Journalist’s or
reporter’s privilege
• As with free press/fair trial, a balancing test

10. Journalist’s or
reporter’s privilege
• As with free press/fair trial, a balancing test
• Courts decide on a case-by-case basis

11. Journalist’s or
reporter’s privilege
• As with free press/fair trial, a balancing test
• Courts decide on a case-by-case basis
• Guidelines have shifted over time

12. Branzburg v. Hayes (1972)
• Paul Branzburg’s
sources had
information about
drugs
• Two co-defendants
had done confidential
reporting on the Black
Panther Party

13. Byron “Whizzer” White
• Wrote majority
opinion
• Rejected reporter’s
privilege
• Wrote that “the lonely
pamphleteer” is as
important as
professional
journalists

14. Potter Stewart
• Wrote minority decision
• Criticized majority’s
“disturbing insensitivity”
to the role of a free
press
• Proposed a three-part
balancing test

15. The Stewart test
• Does the journalist possess “clearly relevant”
information?

16. The Stewart test
• Does the journalist possess “clearly relevant”
information?
• Is there no way of obtaining the information by
“less destructive” means?

17. The Stewart test
• Does the journalist possess “clearly relevant”
information?
• Is there no way of obtaining the information by
“less destructive” means?
• Is there a “compelling and overriding need” for
the information?

18. Powell’s “enigmatic
concurring opinion”
• Sides with majority’s view
that there is no reporter’s
privilege
• Calls for “striking of a
proper balance” between
freedom of the press the
obligation to testify
• Stewart wins by losing (but
not forever)

19. The balancing test in practice
• Relevance and importance of information

20. The balancing test in practice
• Relevance and importance of information
• Availability through alternative means

21. The balancing test in practice
• Relevance and importance of information
• Availability through alternative means
• Type of controversy
– Reporter’s privilege is weaker in a criminal case
than a civil case

22. The balancing test in practice
• Relevance and importance of information
• Availability through alternative means
• Type of controversy
• How information was gathered
– Confidential sources are more privileged than
first-hand observation

23. Shield laws
• About 30 states have them
– A shield law is being considered in
Massachusetts

24. Shield laws
• About 30 states have them
• Except for Wyoming, remaining states have
judicial opinions granting some degree of
journalistic privilege

25. Shield laws
• About 30 states have them
• Except for Wyoming, remaining states have
judicial opinions granting some degree of
journalistic privilege
• None is absolute — more like the Stewart
balancing test

26. Shield laws
• About 30 states have them
• Except for Wyoming, remaining states have
judicial opinions granting some degree of
journalistic privilege
• None is absolute — more like the Stewart
balancing test
• No federal shield law

27. What should be protected?
• Justice White said you
can’t define who is a
journalist
• Vanessa Leggett ran
afoul of this and
served 168 days
• Is it possible to define
journalism?

28. Cohen v. Cowles
Media Co. (1991)
• Damned if you do, damned if you don’t

29. Cohen v. Cowles
Media Co. (1991)
• Damned if you do, damned if you don’t
• Based on the doctrine of promissory estoppel
– A false promise that leads someone to engage in
damaging behavior
– Similar to contract law

30. Cohen v. Cowles
Media Co. (1991)
• Damned if you do, damned if you don’t
• Based on the doctrine of promissory estoppel
– A false promise that leads someone to engage in
damaging behavior
– Similar to contract law
• Justice White: “generally applicable laws” do
not violate First Amendment

31. McKevitt v. Pallasch (2003)
• Richard Posner a highly
influential conservative
judge
• Can’t ignore Supreme
Court precedent
• Tells colleagues to re-
read Branzburg and see
it for what it is

32. Judith Miller case (2005)
• Judge Sentelle adopts
Posner’s view
• Notes that Justice Powell
sided with the Branzburg
majority
• Adds that Justice
Department used
balancing test

33. Obama’s war on journalism
• Prosecuted 9 cases
against leakers, more
than his predecessors
• Named one journalist
an “unindicted co-
conspirator”
• James Risen warns
that Obama paved the
way for Trump

34. Trump and Reality Winner
• Intelligence specialist
leaked documents
about Russian
meddling
• The Intercept ineptly
revealed identifying
information
• Winner is now serving
five years in prison