Jamie M. Porter
J.D., Indiana University School of
Law–Bloomington, 2007; B.A., University of Michigan, 2002.
Articles by this Author
Not Just “Every Man”: Revisiting the Journalist’s Privilege Against Compelled Disclosure of Confidential Sources
- By Jamie M. Porter
- Published 10/4/2007
- Volume 82, Issue 2
The press has long relied on confidential sources to inform the public about the issues of the day, particularly those that are "highly charged." Without the ability to grant confidentiality to sources, journalists would be stymied in their investigative efforts and in gaining access to information that the public would not otherwise be privy to. Yet in recent years, the press's newsgathering ability has come under attack by federal prosecutors seeking compelled disclosure of confidential sources, particularly in the grand jury setting. This Note thus begins with the premise that the privilege of journalists against compelled disclosure of confidential sources must be strengthened. Doing so will enable the press to adequately perform its intended function, one that is vital to the health of our democracy: keeping the public informed.
More specifically, this Note traces the legal foundations on which the journalist's privilege is based, beginning with the Supreme Court's seminal holding in Branzburg v. Hayes, which precludes journalists from using the First Amendment as a basis for protecting confidential sources. However, there exist two alternatives for such protection: Federal Rule of Evidence 501 and statutory law. This Note examines both possibilities and concludes that a federal shield law is the proper means for providing journalists with protection against compelled disclosure of confidential sources. A thoughtfully crafted statute will both adequately balance the journalist's privilege against the competing interest in the administration of justice, while also promoting the same democratic values that are inherent in the First Amendment.

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