II. Authority for and source of the right

The Ninth Circuit developed a qualified privilege protecting reporters from compelled disclosure after the Supreme Court decided Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Supreme Court expressly rejected any privilege for reporters in the grand jury context and held that "whatever burden might result from requiring news gatherers to testify would not override the public interest in law enforcement and in ensuring effective grand jury proceedings." Id. at 690. A reporter's right to keep sources confidential in the Ninth Circuit is highly dependant upon whether the circumstances of a case mirror those in Branzburg. When the court finds that the facts are sufficiently analogous to Branzburg, it refuses to allow journalists to invoke the reporter's privilege. See, e.g., In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 400 (9th Cir. 1993), cert. denied, 114 S. Ct. 685 (1994) (affirming a district court's ruling finding academic author in civil contempt for refusing to answer certain questions propounded to him by the federal grand jury); In re Lewis, 517 F. 2d 236 (9th Cir. 1975) (Lewis II) (affirming the contempt citation against a general manager of a radio station who refused to comply with a federal grand jury subpoena). When, however, the court concludes that the facts are sufficiently distinct from Branzburg, it is more likely to find privilege. See, e.g., Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972) (reversing a district court's contempt order against members of the Black Panther Party who refused to answer questions during a grand jury proceeding because there was no substantial connection between the information sought and the criminal conduct being investigated, the court held that the "substantial connection" test was consistent with Branzburg).

When cases do not involve grand jury proceedings, the Ninth Circuit relies on Justice Powell's concurrence in Branzburg and recognizes a qualified privilege for reporters. See Farr v. Pritchess, 522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (affirming a district court's denial of reporter's habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). This qualified privilege requires that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. See id. at 468; Dillon v. City of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990) (denying a cameraman's motion to quash because his personal observations were not privileged).

Other sources:

1. 28 C.F.R. § 50.10

28 C.F.R. § 50.10 establishes the Department of Justice's policy regarding issuance of subpoenas to members of the news media. Section 50.10 begins by declaring the overarching principle that "[b]ecause freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues." Accordingly, "[t]his policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the newsgathering function." Section 50.10(a) calls on the Department to "strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice." Under the guideline: (i) "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media" (id. § 50.10(b) (emphasis added)); and (ii) "In criminal cases, there should be reasonable grounds to believe . . . that the information sought is essential to a successful investigation" (id. § 50.10(f)(1) (emphasis added)). Several courts have held, however, that failure to fulfill the requirements of § 50.10 is not an independent ground for quashing a journalist subpoena. See, e.g., United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *11 (N.D. Cal. Nov. 18, 2003) ("The government's failure to abide by DOJ's regulations is not an independent ground for quashing a subpoena."); see also In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1121 n.9 (N.D. Cal. 2006) (noting that the regulations "do not provide Movants with any enforceable rights").

2. Common Law

Jaffee v. Redmond, 518 U.S. 1 (1996) arguably compels recognition of a common-law reporter's privilege under Rule 501 of the Federal Rules of Evidence. See In re Grand Jury Subpoena to Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005), cert. denied, 125 S. Ct. 2977 (2005); id. at 1170-72 (Tatel, J., concurring) (applying Jaffee to find the existence of a common-law reporters' privilege); see also New York Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) ("I have no doubt that there has been developed in [the last] thirty-four years federal common-law protection for journalists' sources under [Rule 501] as interpreted by Jaffee."). Rule 501 expressly empowers the federal courts to recognize and elucidate privileges "in the light of reason and experience." Fed. R. Evid. 501. In Jaffee, the Court applied Rule 501 to recognize a psychotherapist-patient privilege, articulating three closely interrelated factors to decide whether particular privileges should be recognized: (1) whether such a privilege is widely recognized by the states, (2) whether the proposed privilege serves significant public and private interests, and (3) whether recognition of those interests outweighs the burden on truth-seeking that might be imposed by the privilege. Since Branzburg, an overwhelming majority of jurisdictions have adopted a reporter's privilege through statute or judicial decision (or both). Nevertheless, courts in the Ninth Circuit so far have chosen not to recognize a common law reporter's privilege. In re Grand Jury Subpoena, Joshua Wolf, 201 Fed. Appx. 430, 433 (9th Cir. 2006); In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1118 (N.D. Cal. 2006).