Rethinking Reporter’s Privilege

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case – decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way – produced a reporter-focused “privilege” that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a variety of ways, commentators and scholars have largely ignored its most fundamental shortcoming: by making the reporter the nucleus of the constitutional inquiry, the Court has unnecessarily complicated an analysis that has a much more natural doctrinal starting point. This Article argues that the Court should abandon its reporter-based approach to confidential-source cases and replace it with a constitutional inquiry that focuses on the anonymous source. It suggests that analyzing confidential-source cases based on the anonymous-speech rights of sources rather than on the informationflow or newsgathering rights of the reporters will more fully acknowledge the scope of First Amendment interests at stake and will eliminate the need to define who is a “reporter” for purposes of the privilege – a task that has become complicated to a degree of near impossibility as technological changes alter the primary mechanisms for gathering and disseminating news.