a. What is All This About?
As a general rule, every competent person may be compelled to testify in a judicial proceeding. Testimonial privileges are exceptions to this rule and are typically granted to allow concealment of communications made in confidence between persons holding certain relationships that society deems worthy of protection.
Some testimonial privileges are granted by common law or statute; these include the lawyer-client and the doctor-patient privileges. There is also one well known privilege granted in the Constitution: the Fifth Amendment’s guarantee that no person “shall be compelled in any criminal case to be a witness against himself.”
Absent recognition of journalistic privilege, a reporter may be compelled to testify in legal, administrative, or other governmental proceedings. Journalists and citizens reporting the news, however, have been asserting their right to keep their sources and newsgathering methods confidential longer than the United States has been independent. In 1734, for example, John Peter Zenger refused to give the names of his sources when he was charged with seditiously libeling British Governor William Cosby of the New York Colony. Zenger, who was later tried and acquitted, was jailed for a month due to his refusal to identify his sources.
If those who report the news are seen merely as an investigative arm of the government, their sources will dry up and we will know less about what goes in our world.
Recognizing the importance of providing a privilege for journalists to do their work – and thereby increase the flow of information to the public – more than 30 states currently have shield laws that provide some protection to “journalists.” The scope of this protection varies from state to state: some states provide an absolute privilege; others provide only qualified protection. States offering a qualified privilege typically permit the privilege to be defeated when the party seeking the information has demonstrated: (1) the desired information is central to the suit; (2) other means of obtaining the information have proven to be inadequate; and (3) the balance of interests favors disclosure.
Many of these laws, however, are in need of updating as they limit their application only to individuals who have a professional affiliation with an established media entity or require “regular” employment as a journalist. Some even expressly exclude broadcast and electronic media. There presently is no federal shield law and the existence of a privilege grounded in the First Amendment or federal common law is increasingly in doubt.
Congress is currently considering a federal shield law that would define who qualifies as a journalist in such a way that it will exclude anyone who is not affiliated with an established media organization.
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