Forty-eight states and the District of Columbia provide journalists with a reporter’s privilege, or protection from the state government to subpoena journalists to reveal confidential information. Some states have statues known as “shield laws” which allows whistleblowers and sources to feel safe approaching journalists and leaking the wrongdoings in society.
However, there is no federal law to protect journalists from revealing the identity of their sources. Therefore, many journalists are called to the Supreme Court and forced to testify and reveal the sources and information gathered. Oftentimes, these reporters refuse to testify as a violation to their First Amendment rights of the freedom of speech and press.
This issue was brought up in the landmark case, Branzburg v. Hayes, in which the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and confidential source. This resulted in a reporter-focused privilege that is now questionable and inconsistent in its application.
A bill proposed by Senator Dianne Feinstein says that the protection of reporters and their sources should only apply to ‘real journalists.’ This bill excludes an entire class of reporters by defining who is and who is not a journalist. The bill would limit protections to those who fir the description of what Congress considers “the press.”
But there is still hope.
Congressman Alan Grayson introduced an amendment to the FY 2015 Commerce, Justice and Science Appropriations bill to provide a media shield for reporters against disclosure of confidential sources. His amendment refers to a journalist that reports on a regular or irregular basis and describes journalism as an act instead of a profession. According to Grayson, a journalist is someone engaged in the act of journalism, including the collection, analysis, dissemination and publication of information. With this amendment, James Risen, Julian Assange, Wikileaks and Glenn Greenwald would meet the definition of a journalist and thus be protected under the media shield law. This would further allow bloggers protection under the First Amendment.
The freedom of our nation relies on the freedom of our press. Without this reporter protection, the fundamentals of journalism are at risk.