Tuesday, June 2, 2009
In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.
While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburg decision.
Download the article from SSRN here.