II. Authority for and source of the right

The reporter's privilege in the Fourth Circuit was developed in the wake of the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972). First the Eastern District of Virginia in Gilbert v. Allied Chemical Corp., 411 F. Supp. 505 (E.D.Va. 1976), and then the Fourth Circuit in United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev'd en banc, 561 F.2d 539 (4th Cir. 1977), construed the limited holding of Branzburg as permitting a reporter's privilege in some cases. Justice Powell's concurrence in Branzburg, advocating a "balance of … vital constitutional and societal interests," provided the framework for the three-part test adopted by the Fourth Circuit in LaRouche v. National Broadcasting Co., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986): "(1) whether the information is relevant, (2) whether the information can be obtained by alternative means; and (3) whether there is a compelling interest in the information." Id. at 1139.

Though state shield laws are discussed in depth in the individual state sections, it should be noted here that three of the five states in the Fourth Circuit -- Maryland, North Carolina and South Carolina -- have enacted shield laws that offer journalists varying degrees of protection for sources and information. See Md. Code Ann., Cts. & Jud. Proc. § 9-112 (1992); N.C. Gen. Stat. Ch. 8, Art. 7 § 8-53.9 (1999); S.C. Code § 19-11-100 (1995). None of the shield laws has been addressed in a federal court opinion.