II. Authority for and source of the right

In Branzburg v. Hayes, 408 U.S. 665 (1972), the United States Supreme Court held that it is not a violation of the First Amendment to require newsmen appear and testify before state or federal grand jury proceedings to answer questions relating to criminal investigations. Justice Powell, however, limited the scope of this holding in his concurrence. He stated that newsmen are not without their constitutional rights, and in essence recognized what is commonly referred to as a "qualified privilege." This qualified privilege requires a balancing of interests between the right to compelled disclosure and the right to properly gather news through confidential information.

Following the Supreme Court's decision in Branzburg, the 11th Circuit adopted the principle of a qualified reporters' privilege to protect the information gathered by reporters during the course of newsgathering. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980); see also United States v. Caporale, 806 F.2d 1487, 1504 (11th Circuit 1986). In Miller v. Transamerican Press, Inc., the Court held that a reporter has a First Amendment privilege not to reveal the identity of confidential informants, but limited this holding by stating that the privilege is not absolute. See Miller at 725. Among the decisions on which the Court based its decision was Branzburg v. Hayes, supra.

In United States v. Caporale, 806 F.2d at 1504, citing Miller, supra, the Eleventh Circuit referred to the three part test that must be satisfied before a reporter will be compelled to reveal information. The governing standard is that such information may only be compelled if the party requesting the information can show: (1) that the information is highly relevant, (2) that it is necessary to the proper presentation of the case, and (3) that it is unavailable from other sources. See also Price v. Time, Inc., 416 F.3d 1327 (11th Cir. 2005); see also United States v. Blanton, 534 F. Supp. 295, 296 (S.D. Fla. 1982), aff'd 730 F.2d 1425 (11th Cir. 1984).