II. Authority for and source of the right

Courts recognizing the privilege derive it from the First Amendment. However, the most recent Court of Appeals case discussed the privilege in terms of the commercial speech doctrine, rather than the traditional First Amendment analysis based on the U.S. Supreme Court case, Branzburg v. Hayes. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998). The 6th Circuit Court of Appeals has rejected the theory that a privilege exists under the First Amendment for criminal cases, but this language has been dismissed as dictum in later district court cases. See In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987); Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303 (W.D. Mich. 1996).

More recent district court decisions have found no First Amendment privilege in criminal or civil cases. See Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (criticizing Southwell's dismissal of In re Grand Jury Proceedings' language as dicta and finding no privilege in criminal or civil cases); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).