Origins
The issue of whether or not journalists can be subpoenaed and forced to reveal confidential information arose in 1972 with the United States Supreme Court case Branzburg v. Hayes. Paul Branzburg was a reporter for The Courier-Journal in Louisville, Kentucky and wrote an article about the drug hashish. In creating the article, he came in contact with two local citizens who had created and used the drug. Because their activity was illegal, Branzburg promised the two individuals that he would not reveal their identities. After the article was published, Branzburg was subpoenaed by a local grand jury and ordered to reveal the identity of his sources. Branzburg refused and cited the provisions for freedom of the press from the First Amendment of the Constitution, in his defense.
The case eventually reached the US Supreme Court, where the court decided in a five to four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. The court acknowledged, however, that the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest." While this ruling did not set a precedent for journalistic rights in court, it did define a more stringent set of requirements for when a journalist could be subpoenaed in court.
This ruling was limited in nature, did not set a clear federal precedent regarding journalistic privileges from revealing confidential information, and thus has been interpreted and cited differently by courts over the years. The Third Circuit Court of Appeals, for instance, has gleaned a qualified First Amendment privilege from the Branzburg decision. In Riley v. City of Chester, the Court held that a reporter's right to protect his sources from disclosure could be overcome by a party who, by a preponderance of the evidence, demonstrated that he has made an effort to obtain the information elsewhere, that the only access to the information sought is through the journalist and his or her source, and that the information sought is crucial to the case. 612 F.2d 708 (3rd Cir. 1979).
Read more about this topic: Shield Laws In The United States
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