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Most journalists believe that their right to protect the identities of their confidential
sources even in courts of law is a core professional privilege. However, legal recognition of
this privilege has been inconsistent. The issue first came to public notice in the 1970s
when the administration of President Richard M. Nixon subpoenaed nearly 200 journalists
during his first two years in office. The Supreme Court addressed the matter in Branzburg
v. Hayes (1972), a ruling which covered four separate cases involving three journalists who
had been subpoenaed by grand juries. In a tight vote, the court rejected the journalists’
claim that they need not reveal their sources when subpoenaed.15 Some of the dissenting
justices argued for an absolute journalistic privilege, while others said that a qualified
version should exist based on a three-part test of relevance, alternative means, and
compelling interest.16
Since then, lower federal courts have generally recognized the qualified privilege of source
confidentiality based on this test. More than 30 states plus Washington, D.C., have shield
laws designed to protect the right of source confidentiality, while courts in four other
states without explicit shield laws have consistently ruled in favor of source
confidentiality.17 However, there is still no national standard for source protection. Even in
jurisdictions with shield laws, some statutes do not cover nonconfidential sources of
information, while others do not consider freelancers to be journalists.18
In the decades since Branzburg, reporters have had the greatest success defending the
confidentiality of their sources in civil cases and at the local and state levels. Because there
is no federal shield law, reporters are most vulnerable to being subpoenaed by the federal
court system. In response to a FOIA request made in 2006 by the Reporters Committee for
Freedom of the Press (RCFP), the Justice Department reported that “approximately 65
requests for media subpoenas have been approved by the Attorney General since 2001.”
Unpublished author and freelancer Vanessa Leggett spent the second half of 2001 in jail
after she refused to turn over research notes regarding a murder case to a federal grand
jury.19
Journalists also argue that newsrooms should be protected from unannounced police
searches accompanied by a warrant. However, the Supreme Court ruled in the 1978 case
of Zurcher v. Stanford Daily that they are not. This decision proved so unpopular that in
1980 Congress passed the Privacy Protection Act, which guards newsrooms against such
searches except in special circumstances.20

Governmental Control of Media Coverage

The Bush administration’s desire to expand secrecy and executive privilege, as well as to
limit or control media coverage, has led the federal government to issue narrower
guidelines for interpreting FOIA, increase the amount of information that is classified, and
in some cases threaten media outlets that publish stories based on leaks of such
information. In addition, the government in recent years has taken a more aggressive
stance toward journalists who decline to reveal their sources, bringing the issue of source
confidentiality to the forefront of the press freedom debate. The Bush administration has
also stepped up attempts to influence or “spin” the news through covert payments to
columnists and the increased dissemination of officially produced news clips.

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