Friday, January 30, 2009
Most federal circuits recognize a qualified journalist's privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source's information, would yield unpredictable results. These proposals have not gained traction.
This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist's use of information from a confidential source adhered to the guidelines. This approach would align the journalist's privilege with the public interest without requiring a subjective assessment of information's news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a "journalist" entitled to invoke the privilege.
Download the article from SSRN here.