The federal constitutional and common law rights

Despite the lack of a federal shield law, journalists subpoenaed to testify in federal court are not wholly without protection. The majority of federal courts recognize that the First Amendment creates a reporter's privilege to refuse to disclose confidential sources or other information obtained while newsgathering. Somewhat ironically, courts that recognize the privilege do so based on the U.S. Supreme Court's 1972 holding in Branzburg v. Hayes -- the only, and very confusing, case by the high court to address the reporter's privilege -- that journalists do not have a First Amendment right to refuse to testify in grand jury proceedings.

This constitutional privilege is not universally recognized. (If you live in Kentucky, Michigan, Ohio or Tennessee, for example, you do not have the benefit of the reporter’s privilege because the federal appellate court with jurisdiction over those states does not recognize the privilege.) Even where the privilege is recognized, it is a qualified privilege, meaning it can be overcome if the subpoenaing party can show a strong need for the information and the inability to gather it by other means. Moreover, who and what is protected by the privilege -- sources, notes, documents or other material -- vary by jurisdiction. Although the law is not settled, online publishers who meet the von Bulow standard -- those individuals who gather information with an intent to disseminate it to the public -- may be covered. (Remember also that at least one court has held that a nontraditional member of the media must also be independent to qualify for the protection.)

Another source of protection in the federal courts is Federal Rule of Evidence 501, which says that privileges from testifying in federal court "shall be governed by the principles of common law as they may be interpreted by the courts of the United States in light of reason and experience."

The "common law" is law that evolves or develops as a result of judicial decision; Federal Rule 501 reflects a Congressional refusal to try and define individual privileges that would be recognized in the federal courts in favor of an approach that allows the courts to develop their own privileges "in light of reason and experience."

Advocates say that federal courts could look to the statutory protection provided in forty states, along with the District of Columbia, as support for the finding that "reason and experience" call for extending the protection to the federal courts. They also point out that recognition of a common law right obviates the need for courts to engage in an analysis under the fractured Branzburg opinion.

Despite these purported advantages, however, a common law right against journalists' compelled disclosure has met with only limited success; a privilege based on the First Amendment and one based on statutory shield laws remain the two most common sources of protection.