II. Authority for and source of the right

The Third Circuit recognized a qualified reporter's privilege derived from the First Amendment in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979). Expressly relying on Branzburg v. Hayes, 408 U.S. 665 (1972), the Court of Appeals cited Federal Rule of Evidence 501 and the First Amendment as the sources of, respectively, its authority to recognize the privilege and the privilege's contours, although it also described the privilege as arising under "federal common law." Riley, 612 F.2d at 714-15; see also, e.g., United States v. Criden, 633 F.2d 346, 356 (3d Cir. 1981) (privilege is "deeply rooted in the first amendment"); Parsons v. Watson, 778 F. Supp. 214, 216 (D. Del. 1991) (privilege "finds its roots" in Branzburg). The Third Circuit also has indicated that it may consider state law in evaluating a claim of privilege, even when its jurisdiction is based on a federal question. Riley, 612 F.2d at 715 ("Although we are not bound to follow the Pennsylvania [shield] law, neither should we ignore [it]."); see also Downey v. Coalition Against Rape & Abuse, Inc., 31 Media L. Rep. (BNA) 2582, 2003 WL 23164082, at *5 n.6 (D.N.J. 2003) (considering both federal common law and state law policies when assessing assertion of privilege in action presenting both federal and state law claims and observing that "more emphasis on state law policy is appropriate ... where the federal ... claims ... are notably weak”).

By the same token, pursuant to Fed. R. Evid. 501, when sitting in diversity, courts in the Third Circuit are bound to apply the applicable state law of privilege. See, e.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 277 n.63 (3d Cir. 1980).