The Conflict Between State Press Shield Laws
and Federal Criminal Proceedings:
The Rule 501 Blues'
Theodore Campagnolo*
TABLE OF CONTENTS
I. OVERVIEW ........................................
II. INTRODUCTION: THE COMMON LAW AND
STATE STATUTES ....................................
HI. THE RATIONALE FOR THE NEWS MEDIA PRIVILEGE ..........
IV. GARLAND V. TORRE: REJECTION OF THE FIRST AMENDMENT
CLAIM TO PROTECT CONFIDENTIAL INFORMATION ...........
V. THE BRANZBURG DECISION ............................
A.
B.
C.
D.
E.
Background .....................................
The Majority Decision ............................
The Branzburg Concurrence ........................
The Branzburg Dissent by Justice Stewart ..............
Justice Douglas' DissentAdvocating Absolute
Privilege .......................................
VI. GENERAL EXCEPTIONS TO BRANZBURG ....................
A . Civil Litigation ..................................
B. The Sixth Amendment .............................
C. Reporters who Witness the Crime ....................
VII. THE CONGRESSIONAL RESPONSE TO BRANZBURG ............
VIII. THE DEPARTMENT OF JUSTICE GUIDELINES FOR
SUBPOENAING THE MEDIA ............................
IX. RULE 501 OF THE FEDERAL RULES OF EVIDENCE ............
X. FEDERAL COLLISIONS WITH STATE SHIELD LAWS ............
A. The Districtof Columbia Circuit-A Conflict
with its Only Jurisdiction ................
.........
446
447
451
453
455
455
456
463
466
469
469
469
470
470
470
472
477
478
479
I. With acknowledgment to the Levi-Strauss Company for paraphrasing the term
"501 Blues."
*
Deputy County Attorney, Maricopa County Attorney's Office, Phoenix, Arizona;
Juris Doctorate, Southern Methodist University. The views expressed in this article are not
necessarily those of the Maricopa County Attorney's Office. The author gratefully
acknowledges the editorial suggestions provided by Dawn Emmerling, Appeals & Legal
Research Bureau, Maricopa County Attorney's Office.
GONZAGA LAW REVIEW
[Vol. 38:3
B. The First Circuit-Two-Fifthswith Qualified
Privilege Shield Laws .............................
C. The Second Circuit-Conflictin New York .............
D. The Third Circuit-CompleteConflict with States'
Absolute Privileges ...............................
E. The Fourth Circuit-FourStates with at Least a
Qualified Privilege ..............................
F. The Fifth Circuit-Conflictin Louisiana ..............
G. The Sixth Circuit-Conflicts Throughout ..............
H. The Seventh Circuit-Conflicts ThroughoutAll
Three States ....................................
I. The Eighth Circuit-A Predominance of Conflicting
R esults .......................................
J. The Ninth Circuit-Almost a Complete Loss of
P rivilege ......................................
K. The Tenth Circuit-Halfthe Circuit Loses its
Privilege ......................................
L. The Eleventh Circuit-TotalConflict .................
XI. THE FINAL ANALYSIS OF A REPORTER'S PRIVILEGE IN
FEDERAL CRIMINAL PROCEEDINGS .......................
A. The CurrentRule 501 Will Never Encompass
a Reporter's Privilege ............................
B. A Congressionally-EnactedFederal Privilege Would
Not Resolve the Conflict Among the States .............
C. Unlike the Reporter's Privilege, Other FederallyRecognized Privileges Receive Similar Treatment
in State Courts ..................................
XII CONCLUSION: CONGRESS SHOULD CREATE AN
EVIDENTIARY EXCEPTION FOR THE REPORTER'S PRIVILEGE ....
480
481
481
483
484
485
486
487
489
490
491
492
492
495
497
499
I. OVERVIEW
When a grand jury or a criminal prosecutor seeks disclosure of a
journalist's confidential sources or the information obtained from such
sources, 2 a journalist has an ethical duty to oppose such disclosure. In some
2. The scope of the article will, by necessity, include reference to non-confidential
sources. Non-confidential sources, however, receive lesser scrutiny because the information
obtained from such sources is often more widely known to the public. See, e.g., In re Grand
Jury, Empaneled Feb. 5, 1999, 99 F. Supp. 2d 496, 499-500 (D.N.J. 2000); In re Letellier,
578 A.2d 722, 730 (Me. 1990); CBS, Inc. v. Campbell, 645 S.W.2d 30, 33 (Mo. Ct. App.
1982).
2002/03]
THE RULE 501 BLUES
states, a journalist can rely on press shield laws that protect a source's identity
or the information obtained from such sources.3 If, however, disclosure is
sought in a federal criminal proceeding, these state-based press shield laws
provide no protection to a journalist because of Rule 501 of the Federal Rules
of Evidence. 4
This Article will demonstrate that there is no legal or historical rationale
justifying the widely divergent results of disclosure or non-disclosure of a
reporter's source depending on whether the matter is brought in federal or state
court. Because ajournalist's claim of privilege is wholly state-based, Congress
should provide an exception to Rule 501 that would allow a reporter's privilege
in the forum state to apply in federal grand jury proceedings and criminal
cases, just as it would in civil diversity cases. In this way, disclosure or
non-disclosure of a journalist's source would receive the same treatment
whether the matter was investigated or prosecuted in state court or federal
court.
II. INTRODUCTION: THE COMMON LAW
AND STATE STATUTES
At common law, a news reporter's source of information, no matter how
confidential, enjoyed no constitutional or evidentiary privilege from preventing
disclosure.5 In Branzburg v. Hayes,6 the United States Supreme Court held
3.
This article will refer to the terms "press shield law," "news media privilege,"
"reporter's privilege," and "journalist's privilege" interchangeably, as they are synonymous
with each other.
4.
Rule 501 reads as follows:
Except as otherwise required by the Constitution of the United States or provided
by Act of Congress or in rules prescribed by the Supreme Court pursuant to
statutory authority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles of the common law
as they may be interpreted by the courts of the United States in the light of reason
and experience. However, in civil actions and proceedings, with respect to an
element of a claim or defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or political subdivision
thereof shall be determined in accordance with State law.
FED. R. EVID. 501.
5.
Garland v. Torre, 259 F.2d 545, 550 (1958); 8 JOHN HENRY WIGMORE, EVIDENCE
IN TRIALS AT COMMON LAW § 2286 (McNaughton rev., 1961); James I). Henderson,
Comment, The Protectionof Confidences: A Qualified Privilegefor Newsmen, 1971 LAW &
SOC. ORD. 385, 394. The issue was raised and rejected in a Congressional hearing in 1857
when a newsman was cited with contempt by Congress for refusing to reveal his confidential
sources regarding an article about U.S. Representatives taking bribes. Id. at 385 n. 1. In one
of the earliest state court rulings, a journalist's claim of common law privilege to protect a
source was rejected by the California Supreme Court. Ex parte Lawrence, 48 P. 124, 125
(Cal. 1897); see also People ex rel. Mooney v. Sheriff of New York County, 199 N.E. 415,
GONZAGA LAW REVIEW
[Vol. 38:3
that the First Amendment does not protect a newsperson from being required
to appear and reveal a confidential source before a grand jury.7
Rule 501 of the Federal Rules of Evidence provides that state-based
privileges are only applicable in federal civil diversity cases. 8 In federal
criminal cases, however, the only privileges that attach are those governed by
common' law.' While federal common law never countenanced such a
privilege,'" the Supreme Court has endorsed the right of the states to create
such a privilege. " Maryland was the first state to create a newsperson's
privilege in 1896.12 In total, nineteen states had already legislated such
privileges prior to Branzburg,'3 while others did so as a direct reaction to the
416 (N.Y. 1936) (rejecting a journalist's claim on the ground that no such privilege existed
at common law).
6.
408 U.S. 665 (1972).
7.
Id. at 667. The Court stated that such privilege could also not be asserted in a
criminal trial under either common law or First Amendment grounds. Id. at 689-90. Because
the sole issue before the Court was the existence vel non of the privilege in grand jury
proceedings, this reference to criminal trials could have been deemed as dictum. Nonetheless,
many courts have relied upon this portion of the Branzburg opinion to extend the privilege
to criminal trials. See, e.g., United States v. Smith, 135 F.3d 963, 972 (5th Cir. 1998)
(involving non-confidential media source information in a criminal trial); Shain v. United
States, 978 F.2d 850, 852 (4th Cir. 1992) (involving a criminal contempt action against a
reporter refusing to disclose a source in a criminal case); Silkwood v. Kerr-McGee Corp., 563
F.2d 433, 437 (10th Cir. 1977) (interpreting Branzburg as limited to criminal cases); Bell v.
City of Des Moines, 412 N.W.2d 585, 587 (Iowa 1987) (seeking disclosure of a television
station's videotapes in a civil case); State v. St. Peter, 315 A.2d 254, 255 (Vt. 1974)
(involving a criminal contempt action against a reporter arising from a refusal to disclose a
source in a civil case).
8.
See supra note 4.
9.
Id.
10. Branzburg, 408 U.S. at 698-99. Despite this clear pronouncement, some judges
after Branzburg asserted that such a general common law privilege existed. See Riley v. City
of Chester, 612 F.2d 708, 715 (3rd Cir. 1979); Holton v. Rothschild, 108 F.R.D. 720, 722 (D.
Mass. 1985); In re Contempt of Wright, 700 P.2d 40, 46 (Idaho 1985) (Bistline, J., specially
concurring). But see People ex rel. Mooney, 199 N.E. at 416 (rejecting a claim ofjournalist's
privilege on the basis that no such privilege existed at common law).
11.
Branzburg, 408 U.S. at 706 ("There is also merit in leaving state legislatures free,
within First Amendment limits, to fashion their own standards....").
12. See id. at 699 n.37; see also Tofani v. State, 465 A.2d 413, 415 (Md. 1983).
Interestingly, Maryland remained the sole state to have such a statute until 1933 when New
Jersey passed such a statute. See Paul Marcus, The Reporter's Privilege:An Analysis of the
Common Law, Branzburg v. Hayes andRecent Statutory Developments, 25 ARIz. L. REV. 815,
859, n.321 (1984).
13. 408 U.S. at 691 n.27 (listing seventeen states). Branzburg referred to seventeen
states that, by 1991, had enacted press shield laws prior to its opinion. It appears, however,
that there were actually nineteen states that had enacted such legislation. The two states
unmentioned by the Court, Illinois and Wisconsin, enacted their statutes in 1971. Because
the opinion was issued in June 1972, these 1971 enactments may have been overlooked. The
2002/03]
THE RULE 501 BLUES
449
opinion. 4 Since the Branzburgdecision was issued in 1972, nearly every state
has adopted a rule, either by statute 5 or case law,' 6 to address the claim of a
news media privilege.' 7 Only a handful of states have not addressed the issue.' 8
nineteen states were Alabama (1940), Alaska (1967), Arizona (1937), Arkansas (1936),
California (1935), Illinois (1971), Indiana (1941), Kentucky (1937), Louisiana (1964),
Maryland (1896), Michigan (1949), Montana (1947), Nevada (1969), New Jersey (1933),
New Mexico (1970), New York (1970), Ohio (1970), Pennsylvania (1937), and Wisconsin
(1971).
14. See, e.g., State v. Turner, 550 N.W.2d 622, 629-31 (Minn. 1996) (noting that
sections 595.022-595.025 of the Minnesota Statutes were a reaction to Branzburg, in order
to provide additional protection to reporters against subpoenas).
15. ALA. CODE § 12-21-142 (1995); ALASKA STAT. § 09.25.300 (Michie 2000); ARIZ.
REV. STAT. § 12-2237 (West 1994); ARK. CODE ANN. § 16-85-510 (Michie 1987); CAL. EVID.
CODE § 1070 (West 1995); COLO. REV. STAT. § 24-72.5-101 (2001); CONN. GEN. STAT. ANN.
§§ 54-33a, 54-33 (West 2001); DEL. CODE ANN. tit. 10, § 432 (1999); D.C. CODE ANN. §
16-4701 (2001); FLA. STAT. ANN. § 90.5015 (West 1999); GA. CODE ANN. § 24-9-30
(Harrison 1994); 735 ILL. COMP. STAT. ANN. 5/8-901 (West 1992); IND. CODE ANN. §
34-46-4-1 (West 1998); KY. REV. STAT. ANN. § 421.100 (Banks-Baldwin 1993); LA. REV.
STAT. ANN. § 45:1451 (West 1999); MD. CODE ANN., CTS. & JUD. PROC. § 9-112 (1998);
MICH. COMP. LAWS § 767.5a (2001); MINN. STAT. ANN. § 595.021 (West 2000); MONT. CODE
ANN. § 26-1-902 (2001); NEB. REV. STAT. § 20-144 (1997); NEV. REV. STAT. ANN. 49.275
(Michie 1996); N.J. STAT. ANN. 2A.84A-21a (West 1994); N.Y Civ. RIGHTS LAW § 79-h
(McKinney 1992); N.C. GEN. STAT. § 8-53.11 (1999); N.D. CENT. CODE § 31-01-06.2 (1996);
OHIO REV. CODE ANN. §§ 2739.04, 2739.12 (West 1994); OKLA. STAT. ANN. tit. 12, § 2506
(West 1993); OR. REV. STAT. §§ 44.510-44.540 (1999); 42 PA. CONS. STAT. ANN. § 5942
(West 2000); R.I. GEN. LAWS § 9-19.1-1 (1997); S.C. CODE ANN. § 19-11 - 100 (Law. Co-op.
Supp. 2000); TENN. CODE ANN. § 24-1-208 (2000); N.M. EvID. R. 11-514 (Michie 2000).
16. Jenkins v. Liberty Newspapers Ltd. P'ship, 971 P.2d 1089 (Haw. 1999); In re
Contempt of Wright, 700 P.2d 40 (Idaho 1985); Bell v. City of Des Moines, 412 N.W.2d 585
(Iowa 1987); State v. Sandstrom, 581 P.2d 812 (Kan. 1978); In re Letellier, 578 A.2d 722
(Me. 1990); In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); State v.
Ely, 954 S.W.2d 650 (Mo. Ct. App. 1997); State v. Siel, 444 A.2d 499 (N.H. 1982); Hopewell
v. Midcontinent Broad. Corp., 538 N.W.2d 780 (S.D. 1995) (applying to civil cases only);
State v. St. Peter, 315 A.2d 254 (Vt. 1974); Brown v. Commonwealth, 204 S.E.2d 429 (Va.
1974); State v. Rinaldo, 102 Wash. 2d 749, 689 P.2d 392 (1984); State v. Ranson, 488 S.E.2d
5 (W. Va. 1997); State v. Circuit Ct., 355 N.W.2d 367 (Wis. 1983).
17. Some jurists have opined as to why their states have chosen not to enact such a
statutory privilege. See, e.g., In re Contempt of Wright, 700 P.2d at 55 (Shepard, J.,
dissenting) ("The inability to fashion extents and limits, the failure to demonstrate otherwise
adverse results and the need of society to discover truth in its court proceedings, all militate
against the creation of the asserted privilege."); Promulgation of Rules Regarding the
Protection of Confidential News Sources, 479 N.E.2d 154, 156-58 (Mass. 1985) (choosing
not to adopt a specific privilege in order to allow the gradual development of law in this area
through a case-by-case adjudication of the common law process).
18. Mississippi, Utah, and Wyoming have no statutory or decisional law on reporter's
privileges. South Dakota has applied the privilege to civil cases only. See Hopewell, 538
N.W.2d at 780. The federal territories or protectorates of Puerto Rico, Guam, the Virgin
Islands, and the Northern Marianna Islands have not enacted such a privilege.
GONZAGA LAW REVIEW
[Vol. 38:3
Twenty-eight states provide by statute or caselaw for the possible
disclosure of media sources and information obtained from confidential
sources, some of which permit such disclosure only upon certain proof
presented by the requesting party. 9
Eighteen states and the District of Columbia forbid disclosure of media
sources under any circumstance,20 while possibly allowing disclosure of the
information obtained from such sources. 2' Nine of these eighteen states
provide an absolute privilege from disclosure both as to sources and the
information obtained from those sources. 2
19. ALASKA STAT. § 09.25.300 (Michie 2000); ARK. CODE ANN. § 16-85-510 (Michie
1987); COLO. REV. STAT. § 24-72.5-101 (2001); CONN. GEN. STAT. ANN. §§ 54-33a, 54-33j
(West 1994); FLA. STAT. ANN § 90.5015 (West 1999); GA. CODE ANN. § 24-9-30 (Harrison
1994); 735 ILL. COMP. STAT. ANN. 5/8-901 (West 1992); LA REV. STAY. ANN § 45:1451 (West
1999); MINN. STAT. ANN. § 595.021 (West 2000); N.C. GEN. STAT. § 8-53.11 (1999); N.D.
CENT. CODE § 31-01-06.2 (1996); R.I. GEN. LAWS § 9-19.1-1 (1997); S.C. CODE ANN. § 1911-100 (Law, Co-op. Supp. 2000); TENN. CODE ANN. § 24-1-208 (2000); N.M. EVID. R. 11514 (Michie 2000); Jenkins, 971 P.2d at 812; In re Contempt of Wright, 700 P.2d at 40; Bell,
413 N.W.2d at 585; Sandstrom, 581 P.2d at 812; In re John Doe GrandJury Investigation,
574 N.E.2d at 373; Ely, 954 S.W.2d at 650; Siel, 444 A.2d at 499; State v. McMeans, 884
S.W.2d 772 (Tex. Crim. App. 1994); Brown, 204 S.E.2d at 429; St. Peter, 315 A.2d at 254;
Rinaldo, 102 Wash. 2d at 749, 689 P.2d at 392; Ransom, 488 S.E.2d at 5; Circuit Ct., 355
N.W.2d at 367.
20. ALA. CODE § 12-21-142 (1995); ARIZ. REV. STAT. ANN. § 12-2237 (West 1994);
CAL. EvID. CODE § 1070 (West 1995); DEL. CODE ANN. tit. 10, § 4320 (1999); D.C. CODE
ANN. § 16-4701 (2001); IND. CODE ANN. §§ 34-46-4-1 (West 1998); KY. REV. STAT. ANN.
§42 1.100 (Banks-Baldwin 1993); MD. CODEANN., CTS. &JUD. PROC. § 9-112 (1998); MICH.
CoMP. LAWS § 767.5a (2001) (applying except in crimes punishable by life imprisonment);
MONT. CODE ANN. § 26-1-902 (2001); NEB. REV. STAT. § 20-144 (1997); NEV. REV. STAT.
ANN. 49.275 (Michie 1996); N.J. STAT. ANN. 2A.84A-21a (West 1994); N.Y. Civ. RIGHTS
LAW § 79-h(b), (c) (McKinney 1992) (applying to a confidential source or information); OHIO
REV. CODE ANN. § 2739.04 (Banks Baldwin 1994); OKLA. STAT. ANN. tit. 12, § 2506 (West
1993); OR. REV. STAT. § 44.510 (1999); 42 PA. CONS. STAT. ANN. § 5942 (West 2000); In
re Letellier, 578 A.2d at 722.
21. Certain state statutes specifically prohibit disclosure of sources, but allow possible
disclosure of the information obtained from such sources upon the requisite evidentiary proof.
ALA. CODE § 12-21-142 (1995); ARIZ. REV. STAT. ANN. § 12-2237 (West 1994); DEL. CODE
ANN. tit. 10, § 432 (1999); IND. CODE ANN. §§ 34-46-4-1 (Michie 1998); KY. REV. STAT.
ANN. § 421.100 (Banks-Baldwin 1993); MD. CODE ANN., CTS. &JUD. PROC. § 9-112 (1998);
OHIO REV. CODE ANN. §§ 2739.04,2739.11,2739.12 (West 1994); OKLA. STAT. ANN. tit. 12,
§ 2506 (West 1993); see In re Letellier, 578 A.2d at 722.
22. CAL. EvID. CODE § 1070 (West 1995); MICH. COMP. LAWS § 767.5a (2001)
(applying, except in crimes punishable bylife imprisonment); MONT. CODEANN. § 26-1-902
(2001); NEB. REV. STAT. § 20-144 (1997); NEV. REV. STAT. ANN. 49.275 (Michie 1996); N.J.
STAT. ANN. 2A.84A-21 a (West 1994); N.Y. CIv. RIGHTS LAW § 79-h(b),(c) (McKinney 1992)
(regarding confidential source or information); OR. REV. STAT. §44.510 (1999); 42 PA. CONS.
STAT. ANN. § 5942 (West 2000).
2002/03]
THE RULE 501 BLUES
Federal prosecutions in these latter eighteen states and the District of
Columbia would most likely override the state press shield laws that might
otherwise protect a source because Rule 501 does not countenance their
state-based privileges. This disparate treatment, however, is not limited to
federal prosecutions in these eighteen states. Because Branzburg and Rule 501
do not recognize any type of reporter's privilege in criminal cases, an opposite
result might occur in the disclosure vel non of confidential sources between
federal and state courts in thirty-seven states.23 This same conflict would also
occur between the municipal and federal district courts of the District of
Columbia.24
III. THE RATIONALE FOR THE NEWS MEDIA PRIVILEGE
The treatment accorded to news media privilege differs from that given to
other privileges, such as attorney-client and doctor-patient.2 First, the essence
of these other privileges is to keep the communicant's information confidential
from the public, while the reporter's privilege is rooted in the belief that the
source's information should generally be made public.26 Second, unlike the
other privileges in which the identity of the communicant is known, the essence
27
of the reporter's privilege is the anonymity of the communicant's identity.
A promise to maintain the confidentiality of a source is sacrosanct to
journalists. 28 This is based, in part, on the argument, ultimately rejected in
Branzburg,that requiring reporters to disclose confidential sources encroaches
on the First Amendment freedom of the press.29 A basic tenet of journalism is
23. This calculation is attained by adding all of the states that recognize an absolute
privilege with those states that recognize any form of a qualified privilege plus those states
in the Third Circuit that conflict with the Circuit's adoption of a qualified privilege.
24. While its District Courts are bound by federal law, the District of Columbia also
operates as a municipality bound by its local code, which creates a privilege. D.C. CODE ANN.
§16-4701 (2001).
25. Branzburg v. Hayes, 408 U.S. 665, 726 n.2 (1972) (Stewart, J., dissenting).
26. Id.; see also Michael Petheram, Confidentiality of Sources, in THE CONCISE
ENCYCLOPEDIA OF ETHICS IN POLITICS AND THEMEDIA
72 (Ruth Chadwick ed., 2001); Talbot
D'Alemberte, JournalistsUnder the Axe: Protectionof Confidential Sources of Information,
6 HARV. J. ON LEGIS. 307, 325 (1969) (noting that the journalist's privilege is the only
privilege that seeks to protect the identity of the source rather than the communication).
27. Branzburg, 408 U.S. at 726 n.2 (Stewart, J., dissenting); see also D'Alemberte,
supra note 26, at 325.
28.
JEFFREY OLEN, ETHICS IN JOURNALISM
40-41 (1988).
29. Branzburg, 408 U.S. at 690; see also Brown v. Commonwealth, 204 S.E.2d 429,
431 (Va. 1974). See generallyGlenn A. Browne, Note, Just Between You andMe... ForNow:
Reexamining a QualifiedPrivilegefor Reporters to Keep Sources Confidentialin GrandJury
Proceedings, 1988 U. ILL. L. REV. 739, 741-42.
GONZAGA LAW REVIEW
[Vol. 38:3
that a free society demands an unrestricted flow of news to the public.3" On a
more practical basis, it is argued that revealing such confidences would greatly
damage the effectiveness of a reporter in obtaining information from
confidential sources. 3' Such damage, it is argued by the media, would result
in a loss of important stories 32 and "have a chilling effect on speech., 33 This
philosophical belief in the free flow of information has been codified in several
state statutes creating a reporter's privilege.34
The sanctity of not divulging a source's identity is memorialized in ethical
codes and guidelines promulgated by news societies and organizations. As
early as 1934, the American Newspaper Guild published its Code of Ethics,
which provided that "'Newspapermen shall refuse to reveal confidences or
disclose sources of confidential information in court or before judicial or
investigating bodies." 35 In 1973, Sigma Delta Chi, a Society of Professional
Journalists, declared that "'Journalists acknowledge the newsman's ethics of
protecting confidential sources of information. "'36
The obligation to protect a source's identity is considered by reporters as
a duty "not only to the source, but to journalism as well., 37 The argument is
also made that disclosure of confidential sources, when ordered by a grand
jury, would transform the Fifth Estate into nothing more than a "de facto
30. Garland v.Torre, 259 F.2d 545, 548 (1958); see also Ashcraft v. Conoco, Inc., 218
F.3d 282, 287 (4th Cir. 2000); May v. Collins, 122 F.R.D. 535, 538-39 (S.D. Ind. 1988);
Fischer v. McGowan, 585 F. Supp. 978, 985 (D. R.I. 1984) ("A valuable public purpose is
served by facilitating the ability of persons to talk unreservedly and in confidence to the
media."); see also Henderson, supra note 5, at 406.
31. Branzburg, 408 U.S. at 670; see also Riley v. City of Chester, 612 F.2d 708, 714
(3d Cir. 1979); Dumez v. Houma Mun. Fire & Police Civil Serv. Bd., 341 So. 2d 1206, 1208
(La. Ct. App. 1976); OLEN, supra note 28, at 43; The Supreme Court, 1971 Term-Newsmen's
Privilege to Withhold Informationfrom Grand Jury, 86 HARV. L. REV. 137, 146-47 (1972)
[hereinafter The Supreme Court 1971 Term].
32.
OLEN, supra note 28, at 43.
33. See United States v. LaRouche Campaign, 841 F.2d 1176, 1181 (1st Cir. 1988);
see also Margaret Sherwood, The Newsman's Privilege:Government Investigations,Criminal
Prosecutions and Private Litigation, 58 CAL. L. REV. 1198, 1245 (1970) (arguing that
anything but an absolute privilege hinders the governmental interest of solving crimes in the
long run, and that information obtained from confidential sources by the news media often
aids prosecutors in pursuing investigative leads). Ms. Sherwood believed in 1970 that it
"[was] time for the Supreme Court to clear the confusion." Id. at 1250; D'Alemberte, supra
note 26, at 339; see also Henderson, supra note 5, at 406.
34. See COLO. REV. STAT. ANN. §24-72.5-101 (West 2003); MINN. STAT. ANN.
§595.022 (West 2003); NEB. REV. STAT. §20-144 (West 2003).
35. Petheram, supra note 26, at 72.
36. Id. at 71-72.
37. OLEN, supra note 28, at 41.
2002/03]
THE RULE 501 BLUES
investigative arm" of the government.38 One commentator has argued that the
moral obligation to protect a source will usually override a court order.39
Clearly, a reporter's refusal to disclose a source in the face of a valid subpoena
or court order will likely result in a finding of contempt and possible
incarceration.4 n
There is no question that news organizations rely on confidential sources
for a certain percentage of their articles. 41 A recent survey by the Wall Street
Journal estimated that, in the 1970s, fifteen percent of its articles were based
on confidential information.4 2 The 1972 Branzburgopinion acknowledged that
approximately ten percent of reporters' stories relied on confidential sources,
however, the Court also noted that only twenty percent of those reporters
recognized a possible adverse effect on their reporting if their sources were
disclosed. 4
IV GARLAND V. TORRE 44
REJECTION OF THE FIRST AMENDMENT CLAIM TO PROTECT
CONFIDENTIAL INFORMATION
Garlandv. Torre was the first federal circuit court case in which a news
gatherer attempted to use the First Amendment to protect the disclosure of
confidential information. 5 In 1957, a reporter named Marie Torre published
38. Id. at 43. But see In re Grand Jury 95-1, 59 F. Supp. 2d 1, 15 (D.D.C. 1996)
(analyzing and rejecting the arguments that, under the facts of the case, the disclosure of the
source would transform the reporter into an arm of the government).
39. OLEN, supra note 28, at 43.
40. See United States v. LaRouche Campaign, 841 F.2d 1176, 1177 (1st Cir. 1988);
Henderson, supra note 5, at 394. Because of such a likely result, it has been suggested that
any journalist who disagrees with this philosophy should not make a promise of
confidentiality to a source. OLEN, supra note 28, at 44; see also Ross E. Milloy, Writer who
was Jailed in Notes Dispute is Freed,N.Y. TIMES, Jan. 5, 2002, at A8 (describing how an
author of a yet unpublished book was jailed for 168 days for refusing to divulge her sources
before a federal grand jury in Houston, Texas).
41. A law review comment written shortly before the Branzburg decision provided a
summary of national newspapers indicating the frequency of articles based on confidential
sources. See Henderson, supra note 5, at 406-15.
42. Petheram, supra note 26, at 72.
43. Branzburg v. Hayes, 408 U.S. 665, 694 n.33 (1972).
44. 259 F.2d 545 (2d Cir. 1958).
45. This was noted by the majority in Branzburg to support its claim that the First
Amendment was never intended to be used to prevent the disclosure of confidential
information. Branzburg,408 U.S. at 685-86. Five years before Garland,a claim of reporter's
privilege was raised in a federal district court libel case in Alabama. Ex parte Sparrow, 14
F.R.D. 351, 352 (N.D. Ala. 1953). In that case, the court applied Alabama's statutory shield
law because no such federal privilege existed. Id. at 353.
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a column in which she attributed statements from an unnamed CBS executive
about Judy Garland, which Ms. Garland believed to be defamatory.4 6 In a
deposition given by Ms. Torre in Ms. Garland's lawsuit, Ms. Torre refused to
violate a confidence by disclosing the name of the CBS executive who had
allegedly made the statements." Ms. Torre's lawyer argued that requiring
reporters to disclose confidential sources "encroach[es] upon the freedom of the
press guaranteed by the First Amendment, because 'it would impose an
important practical restraint on the flow of news from news sources to news
media and would thus diminish pro tanto the flow of news to the public."' 48
The Second Circuit agreed that such compulsory disclosure did abridge
freedom of the press by imposing a limitation on the availability of news, but
held that freedom of the press is not absolute.49 Furthermore, the duty of a
witness to testify in a court of law is as basic to our society as is the guarantee
of a free press.5" The Second Circuit held that freedom of the press must be
subordinate to the "paramount public interest in the fair administration of
justice."" Because the case was brought under diversity jurisdiction, the
Second Circuit noted that protection could be available if there was a reporter's
privilege under state law.52 Unfortunately for Ms. Torre, the forum law of
New York did not provide for such a privilege at that time. 3 The Supreme
Court declined to grant certiorari.54
46.
47.
48.
49.
Garland,259 F.2d at 547.
Id.
Id. at 547-48.
Id. at 548.
50.
Id.
51. Garland,259 F.2d at 549.
52. Id. at 550.
53. Id.; see also People ex rel. Mooney v. Sheriff of New York County, 199 N.E. 415,
416 (N.Y. 1936) (holding that only the state legislature had the authority to create ajournalist
privilege). As early as 1949, New York explicitly opposed adoption of a statutory journalist's
privilege, believing that it was a movement by media organizations based on "pride in their
organization and a desire to give it some mark of professional status, and in part to the
invocation of a false analogy to the long-established privileges for certain professional
communications." WIGMORE, supra note 5, at 536 (quoting N.Y. LAW REVISION COMMITTEE,
REPORT, RECOMMENDATIONS AND STUDIES, 25,28-29 (1949)). It was not until 1970 that New
York enacted a shield law, which provided an absolute privilege to reporters as to the identity
of their confidential sources as well as the information obtained therefrom. N.Y. Civ. RIGHTS
LAW § 79-h(b), (c) (McKinney 2003).
54. Garland v.Torre was the first of three lower court cases in which the Court
declined to address the issue before it finally did so in Branzburg. See State v. Buchanan, 436
P.2d 729 (Or. 1968), cert. denied, 392 U.S. 905 (1968); Murphy v. Colorado (unreported),
cert. denied, 365 U.S. 843 (1961). Justice Douglas, who wrote a dissent in Branzburg, voted
to grant certiorari in the Garlandand Murphy petitions.
2002/03]
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V. THE BRANZBURG DECISION
A. Background
The Branzburg opinion actually resolved four separate writs of certiorari
all stemming from federal grand jury subpoenas served on reporters seeking
disclosure of confidential information obtained from drug dealers or
"subversive groups. 55 Two were from the Kentucky Court of Appeals in
Branzburg v. Pound 6 and in what the Court referred to as an unreported
decision in Branzburg v. Meigs.57 One was from the Supreme Judicial Court
of Massachusetts in In re Pappas.58 The final writ came from the Ninth
Circuit Court of Appeals in Caldwell v. United States.59
In their arguments to the Supreme Court, the reporters asserted that the
free flow of information protected by the First Amendment would be
constricted if they were required to reveal to a grand jury the identity of their
sources or the confidences provided by those sources. 60 Their fundamental
55. There was an increase in press subpoenas during this time period, which has been
generally attributed to the events of the "turbulent sixties." Henderson, supra note 5, at 385
n.2. Two of the Branzburg cases involved interviews with local drug dealers. The other two
involved interviews with members of the Black Panther Party, which was, at the time, a target
of both federal and local law enforcement.
56. 461 S.W.2d 345 (Ky. Ct. App. 1970), aff'dsub nom. Branzburg v. Hayes, 408 U.S.
665 (1972). The subpoenas in this case and the Meigs case arose out of articles written by
Paul Branzburg on illegal drug sales in the Louisville area.
57. The decision in Meigs was ultimately reported in Branzburg v. Meigs, 503 S.W.2d
748 (Ky. Ct. App. 1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).
58. 266 N.E.2d 297 (Mass. 1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665
(1972). The subpoena in this case arose out of a news story by Paul Pappas based upon
interviews with members of the Black Panther Party.
59. 434 F.2d 1081 (9th Cir. 1970), rev'd sub nom. Branzburg v. Hayes, 408 U.S. 665
(1972). The subpoena in this case arose out of a New York Times article by Earl Caldwell
based on interviews with members of the Black Panther Party.
60. Branzburg,408 U.S. at 679-80. These subpoenas raised the ire of some members
of the 91st Congress, who unsuccessfully attempted to enact legislation that would have
protected the media from such subpoenas. With specific reference to Caldwell's New York
Times article on the Black Panther Party, Senator Byrd condemned such governmental
subpoenas as "a step in the direction of government regulation of the press." 116 CONG. REC.
S2508-09 (daily ed. Feb. 5, 1970) (statement of Sen. Byrd); see also 116 CONG. REC. H6255
(daily ed. Mar. 5, 1970) (statement of Rep. Ottinger) (referring, inter alia, to the Caldwell
subpoena). As a direct result of these federal subpoenas, Representatives Koch, Ottinger, and
Van Deerlin introduced House Resolution 16328 entitled the "Newsman's Privilege Act,"
which would have created a qualified privilege against federal criminal subpoenas. 116
CONG. REC. H6174 (daily ed. Mar. 5, 1970) (statement of Rep. Koch) (stating that such
subpoenas had a chilling effect clearly intended to intimidate the media); 116 CONG. REC.
H6254 (daily ed. Mar. 5, 1970) (statement of Rep. Ottinger) (stating that the bill would
combat a policy of repression that threatened to transform the media into a propaganda arm
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assertion was that requiring reporters to disclose their sources causes a greater
burden than the benefit conferred on the public by giving up such
information. 6 Rather than asserting an absolute privilege,62 the petitioners
advocated for a qualified privilege, which would require the following criteria
to be met before the reporters would have to disclose confidential sources or
information to a grand jury or at trial:
*
"
"
The information was relevant to a crime being investigated by the
grand jury;
The information possessed by the reporter was unavailable from other
sources; and
The need for the information was sufficiently compelling to override
63
the claimed invasion of the First Amendment interests.
B. The Majority Decision
In a five to four majority decision authored by Justice White, the Court
emphasized the importance of First Amendment protection for newsgathering,
stating that freedom of the press could be eviscerated if some protection was
not given to reporters to seek out the news. 64 The majority believed, however,
of the government); 116 CONG. REC. H6276 (dailyed. Mar. 5, 1970) (statement of Rep. Van
Deerlin) (stating that the bill would "curb the zeal of would-be manipulators of the press...");
see also 116 CONG. REC. H6547-48 (daily ed. Mar. 9, 1970) (statement of Rep. Mikva)
(advocating the need for a national uniform privilege). Senators Fulbright and McIntyre
introduced Senate Bill 3552, a companion bill to House Resolution 16328. 116 CONG. REC.
S8366-67 (daily ed. Mar. 20, 1970) (statement of Sen. Fulbright) (stressing the need for a
uniform national standard). Later, in the same 91 st Congress, Representative Reid introduced
House Resol ution 16704, which expanded the earlier Newsman's Privilege Act to encompass
civil litigation as well as criminal. 116 CONG. REC. H28916-17 (daily ed. Aug. 13, 1970)
(statement of Rep. Reid). None of these resolutions or bills were enacted by the 91st
Congress.
61. Branzburg, 408 U.S. at 681.
62. Of the three states involved in the Branzburg decision, two provided for an
absolute privilege of some sort. At the time, Kentucky law provided an absolute protection
of the identity of the source, but not the underlying information. Because of this, Kentucky
courts had interpreted the statute to require a reporter to appear before a grand jury even
though the reporter was statutorily allowed not to answer any questions about the source's
identity. Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. Ct. App. 1970). California's statute
provided for an absolute protection from contempt for refusing to disclose a source. CAL.
EvID. CODE § 1070 (West 2003). Because this was the media's best opportunity to present
its strongest First Amendment argument, one might have expected the appellants to have
relied more on the absolute protection of the state statutes in conjunction with thejournalist's
fundamental ethics against revealing sources.
63. While rejected by the Branzburg majority, this test was supported by Justice
Stewart's dissent. Branzburg, 408 U.S. at 743 (Stewart, J.,
dissenting).
64. Id. at 681 (stating that the Court did "not question the significance of free speech,
2002/03]
THE RULE 501 BLUES
that these cases did not involve intrusion on free speech nor any prior restraint
on what the press may publish.65 The Court noted that there was no
prohibition against using confidential sources nor was there any indiscriminate
requirement that the press publish that which it chose not to publish.66
The Court was presented with a substantial amount of historical and
statistical data showing that confidential informants were vital to
newsgathering. 67 Additionally, the appellate record contained statements from
prominent news people stressing the potential damage to newsgathering if
reporters were required to disclose the identity of confidential sources and their
information. 68 The majority discounted such data and reportorial opinions,
finding that 69the statistics were "widely divergent and to a great extent
speculative."
Rather, the majority held that the obligation of reporters to respond to
grand jury subpoenas was no different than that of any other citizen. 70 The
Court stated that neither the First Amendment nor any other constitutional
provision protected the average citizen from disclosing to a grand jury
confidential information received by that citizen.7'
The Court rejected the reporters' claim that they should have some
privileged position above that of the ordinary citizen to appear and testify
before a grand jury.72 The Court viewed the media's claim as denigrating the
duty of a citizen to respond to a grand jury subpoena and answer relevant
questions.73 The majority stressed the significance of the grand jury in
press, or assembly to the country's welfare"). But see Henderson, supra note 5, at 400
(arguing pre-Branzburg that newsgathering and news dissemination, the latter of which
clearly receives First Amendment protection, cannot logically be separated and should be
treated the same by the Court).
65. Branzburg,408 U.S. at 681.
66. Id. at 681-82.
67. Id. at 693-94; see The Supreme Court 1971 Term, supra note 31, at 147-48.
68. Branzburg, 408 U.S. at 730-33, n.8 (Stewart, J., dissenting) (noting that in
addition to statistical surveys, one of the affidavits in the Caldwell case came from Walter
Cronkite, who stressed the importance of confidential sources in the newsgathering process);
see also The Supreme Court 1971 Term, supra note 31, at 147-48 (noting that among other
notable media personalities arguing for such a privilege were Eric Sevareid, Mike Wallace,
Dan Rather, and Marvin Kalb).
69. Branzburg, 408 U.S. at 693-94.
70. Id. at 682-83.
71. Id. While not specifically differentiating newsgatherers from the average citizen,
the dissent in Branzburg clearly believed that the Fifth Estate had a unique and critical role
that deserved a special privilege; see id. at 725 (Stewart, J.,
dissenting).
72. Id. at 685.
73. Id. at 697 (stating that, based on both American and English history, an agreement
to conceal a crime "deserves no encomium" in the face of the average citizen's duty to provide
such testimony).
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Anglo-American history, noting that its authority to subpoena witnesses is "not
only historic,... but essential to its task" of inquiring into the existence of
possible criminal conduct and to return only well-founded indictments.74
The only people that are excused from grand jury testimony are those
protected by a constitutional, common-law, or statutory privilege.75 The Court
noted the non-existence of any such privilege to media sources. "At common
law, courts consistently refused to recognize the existence of any privilege
authorizing a newsman to refuse to reveal confidential information to a grand
jury."76 Simply put, "the common law recognized no such privilege."77 The
Court noted that while seventeen states had created such a privilege,78 a
majority of the states had not done SO. 79 The Court also noted that no such
74. Branzburg, 408 U.S. at 687-88. The majority commented that the grand jury has
historically been regarded as the primary defense against "hasty, malicious and oppressive
persecution." Id. at 687 n.23. But see id. at 742-43 (Stewart, J., dissenting) (noting that grand
juries exhibit vagueness and overbreadth and can pursue rumors which subsequently may
prove groundless).
75. Id. at 688.
76. Id. at 685-86. The Court's analysis was based on a number of state court citations
as well as its belief that the privilege was not even claimed until 1958 in Garlandv. Torre.
The Court's belief was not entirely correct because the claim was successfully raised five
years before Garlandin a federal district court case in Alabama. Exparte Sparrow, 14 F.R.D.
351 (N.D. Ala. 1953). While the Court's reference to a number of state court decisions
supported its position, there were some states that apparently possessed such a common-law
privilege. See, e.g., In re Contempt of Wright, 700 P.2d 40, 46 (Idaho 1985) (Bistline, J.,
specially concurring); In re John Doe Grand Jury Investigation, 574 N.E.2d 373, 375 (Mass.
1991); State v. Rinaldo, 102 Wash. 2d 749, 753-54, 689 P.2d 392, 395 (1984). But see Ex
parte Lawrence, 48 P. 124, 125 (Cal. 1897) (holding that no journalist's privilege existed to
protect a source); People ex rel. Mooney v. Sheriff of New York County, 199 N.E. 415, 41516 (N.Y. 1936) (holding that no journalist's privilege existed at common law). For excellent
discussions on the existence of such a common law privilege in America, see generally
D'Alemberte, supra note 26, at 309-14 (providing a history of the privilege in English and
American common law); Henderson, supra note 5, at 385-90; Marcus, supra note 12, at 817;
Sherwood, supra note 33, at 1200-08.
77. Branzburg, 408 U.S. at 698-99 ("From the beginning of our country the press has
operated without constitutional protection for press informants, and the press has
flourished."); see also WIGMORE, supra note 5, at 528 (stating that, at common law, "No
pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of
justice.").
78. Branzburg, 408 U.S. at 689 n.27. The actual number appears to be nineteen. See
supra note 13.
79. Id. While the majority of states had not created such a statutory privilege in 1972,
that changed as early as 1976. See Mark Neubauer, Comment, The Newsman's Privilege
After Branzburg: The Case for a Federal Shield Law, 24 UCLA L. REV. 160, 167 (1976)
(indicating that by the time of his article, twenty-six states had some form of shield law).
Today, all but three states have a statutory shield law of some form or have adopted some
decisional rule as to the existence vel non of the privilege. See supra notes 12-18.
2002/03]
THE RULE 501 BLUES
federal statute existed.8" Acknowledging that the Fifth Amendment privilege
against self-incrimination was the only one that existed in a grand jury
proceeding, 8' the Court declined to create a First Amendment testimonial
privilege for newsgatherers.82
After determining that no statutory, common law, or constitutional
privilege existed, the Court stressed that the public interest in law enforcement
and in ensuring effective grand jury proceedings clearly outweighed the
"consequential, but uncertain, burden on news gathering" that might occur if
reporters were treated differently than ordinary citizens. 83 Believing that a
grand jury's inherent secrecy would protect a confidential source, the Court
reasoned that confidential sources should be no more concerned about
revealing their confidences to a grand jury than they would to a reporter.84
The majority was confident that its ruling would not affect the vast bulk
of confidential relationships because the Court presumed that very few of the
confidential sources would be criminals themselves or have information
relevant to a grand jury's investigation.85
The majority absolutely rejected the notion that the First Amendment
protects the media's right to conceal a crime,86 holding that sources involved
in criminal activities were "hardly deserving of constitutional protection. '"87
Even though at least two out of the four cases considered by the Court in
80. Branzburg, 408 U.S. at 689. While numerous attempts were made in Congress to
pass such legislation in reaction to the Branzburg decision, no such federal legislation came
to fruition. See discussion infra notes 149-60 and accompanying text.
81. Branzburg, 408 U.S. at 689-90.
82. Id.
83. Id. at 690-91.
84. Id. at 695. The Court seemed to overlook that information obtained by a grandjury
might be subsequently disclosed in a criminal proceeding, thereby destroying the
confidentiality. See also The Supreme Court 1971 Term, supra note 31, at 145 (noting that
trials, unlike grand jury proceedings, are public).
85. Branzburg, 408 U.S. at 691.
86. Id. at 692.
87. Id. at 691-92. (stating that regardless of the media's right to exercise its First
Amendment freedoms, the media still remains subject to society's restraints that separate
right from wrong). Justice Stewart's dissent in Branzburg highlighted the inherent flaw in
the majority's assumption, noting that grand juries have such wide-ranging authority that their
investigations can include far more than those sources that are involved in criminal activities.
Id. at 744 (Stewart, J.,dissenting). Justice Stewart commented that such sources could
include sensitive areas involving governmental officials, financial affairs, political figures,
dissidents, or minority groups. Id. at 732-33. It does not appear that the statistics presented
to the Court regarding confidential sources contained any breakdown on the number of
sources that were involved in the crime or had knowledge of a crime that would be of interest
to a grand jury.
GONZAGA LAW REVIEW
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Branzburg involved newspersons who had themselves witnessed a crime,88 the
majority did not limit its holding to such situations. The Court clarified that
this lack of constitutional protection applied regardless of whether or not the
criminal activity was observed by the reporter or the source. 89
In this same regard, the Majority noted that the reporter's privilege, to the
extent that it existed, belonged to the reporter, not the source.9' Thus, if the
authorities discovered the identity of the source, the source would have no
privilege not to testify, regardless of the effect it might have on
newsgathering. 9'
The Court also noted that a reporter's agreement with a source to conceal
information relevant to a crime is against public policy.92 The Court expressed
its concern that protecting a "private system of informers operated by the press
to report on criminal conduct" would be unaccountable to the public, pose a
threat to a citizen's privacy expectations, and would uniformly protect both
well-intentioned informants as well as those that "pay or otherwise betray their
trust to their employers or associates.""
Noting that law enforcement agencies possess such a privilege not to
disclose informers, the Court differentiated these from media sources on the
assumption that police informants serve a public interest in promoting law
88. Branzburg v. Pound, 461 S.W.2d 345, 345-46 (Ky. Ct. App. 1971); Branzburg v.
Meigs, 503 S.W.2d 748, 751 (Ky. Ct. App. 1971) (describing how a reporter observed drug
dealers/sources converting marijuana to hashish). It is unclear from the appellate opinions
whether Mr. Pappas and Mr. Caldwell actually witnessed any crimes during their contact with
their sources, who were members of the Black Panther Party.
89. Branzburg, 408 U.S. at 692 ("The crimes of news sources are no less
reprehensible and threatening to the public interest when witnessed by a reporter than when
they are not."). While this part of the ruling has been clearly understood by most courts, see
e.g., In re Grand Jury 95-1, 59 F. Supp. 2d 1, 13 (D. D.C. 1996), at least one state supreme
court has misinterpreted Branzburgto apply only in grand jury situations and only when the
reporter actually witnessed the crime. In re Grand Jury Proceedings, 520 So. 2d 372, 375-76
(La. 1988); see also United States v. Liddy, 478 F.2d 586, 587 (D.C. Cir. 1972) (using
eyewitnesses as an example of when Branzburg must apply in grand jury proceedings, but not
limiting Branzburg to eyewitnesses).
90. Branzburg, 408 U.S. at 695-96.
91. Id. While not mentioned in this section of the opinion, the Court previously noted
that grand jury testimony is restrained by the Fifth Amendment. Id. at 689-90.
92. Id. at 695. "Private restraints on the flow of information are not so favored by the
First Amendment that they override all other public interests." Id. at 697.
93. Id. at 697. On the opposite end of the spectrum, the Branzburg dissent worried that
the Majority's decision would make the news media an investigative arm of law enforcement,
thus undermining the whole purpose of the First Amendment's protection for newsgathering.
Id. at 725 (Stewart, J.,
dissenting).
2002/03]
THE RULE 501 BLUES
enforcement.94 The Court also noted that the police 9informant's
identity must
5
be revealed when it is critical to a defendant's case.
The Court rejected the media's request to institute a qualified privilege
because administering such a balancing test "would present practical and
conceptual difficulties of a high order" for a trial court.9" The Court also
cautioned that such a qualified privilege balancing test would open the door for
non-media litigants to assert such a privilege.97 In addition, the Court feared
94. Id. at 697-98.
95. Branzburg,408 U.S. at 698. The Supreme Court's argument justifying the police
informant privilege because it was subject to a Sixth Amendment exception should not have
served to defeat the reporter's privilege. While not part of the decision, there is little doubt
that a reporter's privilege, if one had been created, would generally succumb to a defendant's
Sixth Amendment right to cross-examination, just as would the police informant's privilege.
Subsequent to Branzburg, numerous courts that extended a privilege to news sources in
criminal trial proceedings dispensed with the privilege in the face of a Sixth Amendment
claim of a criminal defendant. See, e.g., United States v. Cutler, 6 F.3d 67, 73-74 (2d Cir.
1993); United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988); United
States v. Criden, 633 F.2d 346, 358 (3d Cir. 1980); State v. Siel, 444 A.2d 449, 504 (N.H.
1982); Farber v. Jascalevich, 394 A.2d 330, 336-37 (N.J. 1978); Brown v. Commonwealth,
204 S.E.2d 429, 431 (Va. 1974); State v. Rinaldo, 102 Wash. 2d 749, 753, 689 P.2d 392, 395
(1984); State v. Ranson, 488 S.E.2d 5, 12 (W. Va. 1997); State v. Circuit Ct., 335 N.W.2d
367, 373-74 (Wis. 1983).
96. Branzburg, 408 U.S. at 703-04.
97. Id. at 705. The majority noted that affording a privilege to some means of
communication, but not to others, would discriminate on the basis of content. Id. at 705 n.40.
Such a situation subsequently arose when a "scholar" unsuccessfully attempted to assert a
newsgatherer's privilege for information he obtained while conducting research for a book on
eco-terrorism. See In re Grand Jury Proceedings, 5 F.3d 397, 398-99 (9th Cir. 1993); see also
In re Grand Jury Proceedings, 776 F.2d 1099, 1103 (2d Cir. 1985) (relying on the Branzburg
analysis in refusing to find a representative of the Hells Angel Motorcycle Club to have a First
Amendment right of association to refuse to testify before a grand jury); In re Possible
Violations of 18 U.S.C. 371, 641, 1503, 564 F.2d 567, 571 (D.C. Cir. 1977) (relying on
Branzburg in rejecting a claim that ministers should have a blanket First Amendment
privilege against testifying before grand juries simply by virtue of their religious status). But
see Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1173 (D. Colo. 1999) (finding the AntiDefamation League to be a "newsperson" under section 13-90-119 of the Colorado Revised
Statutes because the ADL published periodicals and regularly engaged in news gathering
activities). In a more recent unpublished decision, the Fifth Circuit upheld a district court's
contempt order against a writer researching her first book who refused to disclose her sources
about a Houston murder to a federal grand jury. See In re Grand Jury Subpoenas, No.
01-20745 at 1-3, 6 (5th Cir. Aug. 17, 2001). The primary defense appeared to be that the
first-time writer should qualify as a journalist. Milloy, supra note 40, at A8. Despite news
reports that the trial court denied the privilege because the writer was not a journalist, Ross
E. Milloy, When a Writer is Punishedfor Not Being an Author, N.Y. TIMES, Aug. 11, 2001,
at A7, that was not the basis of the trial court's ruling. See also In re GrandJury Subpoenas,
No. 01-20745 at 6 n.4 (noting that the trial court simply ruled that no privilege existed in a
grand jury proceeding). Even assuming that she maybe deemed ajournalist, the Fifth Circuit
said that no such privilege existed in a grand jury proceeding, absent a bad faith investigation.
GONZAGA LAW REVIEW
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that the creation of such a privilege would inextricably intertwine the court
system in determining which criminal laws should or should not be enforced. 98
As the Court made very clear, the basis of its decision was that the sanctity
and secrecy of the grand jury protects against an undue invasion of First
Amendment rights.99 The grand jury's investigation of a crime "implements
a fundamental governmental role of securing the safety of the person and
property of the citizen, and it appears to us that calling reporters to give
testimony in the manner and for the reasons that other citizens are called 'bears
a reasonable relationship' to its governmental purpose. 00
' The only exception
to the Court's ruling would occur if the historical use of a grand jury was
abused.' 0 '
The majority opinion encompassed criminal trials within its ambit." 2
Extending its ruling to criminal trials was unnecessary for the Court's decision
because all of the Branzburg writs arose from grand jury proceedings.
Nonetheless, this statement has allowed federal and state courts to extend the
ruling to criminal trials.0 3 Finally, the Court left open the right of Congress
Id. But see generally Skip Hollandsworth, The Inmate, TEX. MONTHLY, Dec. 2001, at 42, 44,
availableat httpJ/www.texasmonthly.com/mag/issues/2001-12-01/reporter.php. (questioning
whether the United States Attorney's Office for the Southern District of Texas may have had
potentially improper motives in pursuing the grandjury investigation to protect itself from bad
publicity).
98. Branzburg, 408 U.S. at 705-06.
99. Id. at 699-700.
100. Id. at 700-01 (stating that a grand jury's investigation is not complete until it has
run down every clue and examined every witness "in every proper way").
101. Id. at 707-08. While this may seem protective, it is probably fairly toothless in
reality. It is very difficult to declare grand jury abuse, in light of the very nature of a grand
jury, which is one-sided and directed by the prosecution. See generally The Supreme Court
1971 Term, supra note 31, at 143-44 (observing that the good-faith test is minimally
protective because it would be difficult for a reporter to ever prove that a grand jury is not
acting in good faith). While the BranzburgCourt did not specifically state which party would
bear the burden to prove that a grand jury was acting in bad faith, the only logical conclusion
that could be drawn from the opinion was that it would fall on the reporter. See, e.g., In re
Pappas, 266 N.E.2d 297, 303 (Mass. 1971) (placing the burden to show bad faith or
oppressiveness of a grand jury on the reporter); see also The Supreme Court 1971 Term, supra
note 31, at 144 (writing shortly after the decision, the HarvardLaw Review 's annual Supreme
Court survey stated that Branzburg seemed to imply that such burden would be on the
reporter). This observation proved correct when the Supreme Court later confirmed that the
burden of showing the unreasonableness of a grand jury subpoena is on the recipient of the
subpoena. United States v. R. Enter., Inc., 498 U.S. 292, 300 (1991) (holding that "the law
presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate
scope of its authority").
102. Branzburg, 408 U.S. at 695.
103. See, e.g., Shain v. United States, 978 F.2d 850, 852 (4th Cir. 1992); Silkwood v.
Kerr-McGee Corp., 563 F.2d 433, 434, 437 (10th Cir. 1977); Bell v. City of Des Moines, 412
2002/031
THE RULE 501 BLUES
or the state legislatures to fashion such a privilege within First Amendment
parameters. 104
10
C. The Branzburg Concurrence
5
While Justice Powell's concurrence produced a majority decision," 6 it has
been cited by numerous lower courts as instead creating a plurality ruling.' 07
N.W.2d 585, 587 (Iowa 1987); State v. St. Peter, 315 A.2d 254, 255 (Vt. 1974); see also The
Supreme Court 1971 Term, supra note 31, at 145-46 (noting that Branzburg raises questions
of whether it extends to criminal trials and noting that, in criminal trials, the burden on
newsgathering may not outweigh strong countervailing governmental interests). But see In
re Contempt of Stone, 397 N.W.2d 244, 249 (Mich. 1986) (noting that some courts have had
trouble with the Branzburg opinion in situations extending beyond grand jury proceedings).
104. Branzburg, 408 U.S. at 705-06; see also WIGMORE, supra note 5, at 528-30 (noting
that in the absence of a statute to the contrary, a confidential communication to a journalist
is not privileged from disclosure). As noted earlier, nearly all of the states today have
addressed the issue, albeit with varying or no protection. See supra notes 12-22 and
accompanying text; see also Marcus, supra note 12, at 820 (noting that state statutes are not
uniform in their treatment). As will be discussed later, Congress chose not to pass such
legislation. See infra notes 149-60 and accompanying text.
105. Branzburg, 408 U.S. at 709 (Powell, J., concurring).
106. Justice Powell's concurrence was in accord with Justice White's opinion and did
not attempt to concur on a different ground, which might have created a plurality decision.
In fact, Justice Powell referred to the Court's "holding," indicating that his concurrence was
joined with the majority. Id. at 709; see also Saxbe v. Wash. Post Co., 417 U.S. 843, 850,
857-59 (1974) (Powell, J., dissenting) (citing to Branzburg, Justice Powell referred to the
"Court" rejecting the claim for a media privilege and made numerous references to the
"Court's" holding). Additionally, HarvardLaw Review's annual survey of the 1971 Supreme
Court term opined that Justice Powell's concurrence was in agreement with Justice White's
holding, thus rendering the decision a majority opinion. See The Supreme Court 1971 Term,
supra note 31, at 138; see also United States v. King, 194 F.R.D. 569, 576-582, 576 n.7 (E.D.
Va. 2000) (criticizing lower courts' attempts to misinterpret Justice Powell's concurrence,
including its own circuit court); In re Grand Jury 95-1 Subpoena Duces Tecum, 59 F. Supp.
2d 1, 14 (D. D.C. 1996) (finding Justice Powell's concurrence to be consistent with Justice
White's majority opinion); In re Grand Jury Subpoena Am. Broad. Co., Inc., 947 F. Supp.
1314, 1318 (E.D. Ark. 1996) (rejecting any notion that Justice Powell's concurrence is
controlling over Justice White's opinion and rejecting the argument that Branzburg, through
Justice Powell's concurrence, mandates a case-by-case weighing process to determine harm
to First Amendment interests).
107. Despite Justice Powell's agreement with Justice White and his specific rejection
of the dissenting opinions of Justices Stewart and Douglas, a number of lower courts have
referred to the Branzburg decision as a plurality and have attempted to assert that Justice
Powell's concurrence conflicted with Justice White's opinion. See, e.g., In re Grand Jury 87-3
Subpoena Duces Tecum, 955 F.2d 229, 232-34 (4th Cir. 1992) (referring to the "four-justice
plurality opinion" and relying upon Justice Powell's concurrence to create a case-by-case
analysis of Branzburg); Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir. 1975); accord In re
Grand Jury Proceedings, 520 So.2d 372, 375 (La. 1988); cf. People v. Pawlaczyk, 724 N.E.2d
901, 913-14 (111.2000) (labeling Branzburg as a plurality opinion, but holding that reporters
GONZAGA LAW REVIEW
[Vol. 38:3
Justice Powell's concurrence comprised two terse paragraphs.' 0 8 His
reason for writing the concurrence was to highlight the limited nature of the
Court's holding and to stress that newspeople are not without constitutional
rights in the gathering of news and in safeguarding their sources.'0 9 He
strenuously disagreed with Justice Stewart's dissent that the Court's holding
transformed the media into an investigative arm of the government." 0 He
reaffirmed the majority's requirement that the grand jury be conducted in good
faith.'''
Justice Powell clarified the majority's holding by stating that a newsperson
should not be forced to testify before a grand jury if there is only a remote or
tenuous relationship to the subject of the investigation or if the inquiry is not
based on a legitimate need of law enforcement.1 2 He said that a proper
balance must be struck between the freedom of the press and the obligation of
all citizens to provide relevant testimony with respect to criminal conduct." 3
He specifically rejected the media's and Justice Stewart's concept of a
qualified privilege and the resulting balancing test. "4
Despite Justice Powell's clear rejection of the qualified privilege concept,
his perhaps unfortunate use of the term "proper balance" provided an entr6e
to critics of the majority opinion to commandeer the concurrence into an
offshoot of Justice Stewart's dissent." 5 However, the annual HarvardLaw
have no privilege in grand jury proceedings barring a bad faith investigation); In re Decker,
417 S.E.2d 462, 465-66 (S.C. 1995) (calling Branzburg a plurality opinion, but following
Branzburg and rejecting the qualified privilege theory espoused by Justice Stewart).
108. Branzburg, 408 U.S. at 709 (Powell, J., concurring).
109. Id.
110. Id.
111. Id. at 709-10 (stating that harassment of newspeople will not be tolerated).
112. Id. at710.
113. Branzburg, 408 U.S. at 710 (Powell, J., concurring).
114. Id. at 710 n.* (stating that the dissent's qualified privilege created a balancing test
that would defeat the fair balancing suggested in the concurrence and would place an unfair
burden on the state's criminal investigative powers).
115. See, e.g., Marcus, supra note 12, at 829 (stating his belief that Justice Powell's
"confusing" concurrence appeared to agree with Justice Stewart's dissent); see also United
States v. Criden, 633 F.2d 346, 357 (3d Cir. 1980); United States v. Liddy, 478 F2d 586,
586-87 (D.C. Cir. 1972); Lenhart v. Thomas, 944 F. Supp. 525, 529 (S.D. Tex. 1996); United
States v. Hubbard, 493 E Supp. 202, 204-05 (D. D.C. 1979); State v. Sandstrom, 581 P.2d
812, 814-15 (Kan. 1978); State v. Ely, 954 S.W.2d 650, 653-54 (Mo. Ct. App. 1997); State
v. Siel, 444 A.2d 499, 502-03 (N.H. 1982); Philip Morris Co. v. Am. Broad. Co., Inc., 23
Media L. Rptr. 1434, 1435 (Va. Cir. 1995); State v. Ranson, 488 S.E.2d 5, 10 (W. Va. 1997).
But see United States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998) (rejecting the analysis
of those courts that have tried to interpret Justice Powell's concurrence as creating a qualified
privilege for journalists); United States v. King, 194 F.R.D. 569, 576-81 & 576 n.7 (E.D. Va.
2000) (criticizing attempts to change Justice Powell's concurrence into advocating a qualified
2002/03]
THE RULE 501 BLUES
Review survey of the 1971 Supreme Court term written shortly after the
Branzburg opinion, believed that it was unlikely that Justice Powell would
break from the majority in subsequent First Amendment cases, even if such
cases involved different facts." 6 As predicted, Justice Powell never veered
from his support of the Branzburg opinion. 117
privilege). It is interesting that even some journalists' lawyers have referred to Branzburg as
if it created a qualified journalist's privilege in grand jury proceedings. See, e.g., Milloy,
supra note 40, at A8 (quoting an Austin media lawyer that the Supreme Court requires the
government to prove materiality and unavailability of other sources before a journalist has to
testify before a grand jury).
116. The Supreme Court 1971 Term, supra note 31, at 145. Justice Stewart's dissent,
however, expressed hope that Justice Powell's concurrence would provide more flexibility
in future cases. Branzburg, 408 U.S. at 725 (Stewart, J., dissenting).
117. In Saxbe v. Wash. Post Co., Justice Powell confirmed his allegiance to the
Branzburgholding. 417 U.S. 843, 844-60 (1974). In Saxbe, the Washington Post challenged
a policy statement of the Federal Bureau of Prisons that prohibited interviews between
newspeople and prison inmates, arguing that such an across-the-board policy violated the First
Amendment right of the free press to gather news. The Bureau of Prison's position was that
such a rule was necessary to maintain discipline by the press avoiding making "celebrities"
of certain inmates. Because the Bureau of Prisons allowed some photography of inmates on
a more controlled basis, the Court in a five to four decision authored by Justice Stewart, who
was one of the dissenters in Branzburg, upheld the Bureau's policy on the ground that it did
not place the press in a different position than any other portion of the visiting populace. The
Court held that the policy did not deny access to the press on a different level than it did to
the general populace, concluding that it, therefore, did not violate the First Amendment.
Rather than relying on Branzburg, however, the Court relied primarily on its ruling in Pell
v. Procunier,which held that "Newsmen have no constitutional right of access to prisons or
their inmates beyond that afforded the general public." 417 U.S. 817, 834 (1974). Justice
Powell dissented, believing that the Bureau's policy placed an impermissible burden on the
First Amendment, Saxbe, 417 U.S. at 850 (Powell, J., dissenting). Justice Powell criticized
the majority's interpretation of Branzburg, saying that Branzburg did not foreclose a First
Amendment analysis, but rather assessed competing societal interests between grand jury
testimony and the protection of confidential sources. Id. at 859-60. Justice Powell noted that
no confidential information was at stake in Saxbe. Id. at 860. Based on the public's legitimate
interest in a free flow of information about federal prisons, Justice Powell believed that the
First Amendment required a balance between an absolute ban and an uninhibited license to
interview inmates, with the burden on the government to justify any measure of control. Id.
at 864. While the Saxbe dissent reinforced Justice Powell's support of the Branzburg
decision, his continuing use of the term "balance" further fueled critics' contention that his
philosophy coincided more with the Branzburg dissent than the majority. See Marcus, supra
note 12, at 837-38.
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D. The Branzburg Dissent by Justice Stewart
[Vol. 38:3
18
Justice Stewart wrote a scathing dissent" 9 that was joined by Justices
Brennan and Marshall. The dissent expressed a deep concern that the Court's
opinion would annex the press as an arm of the government and would
ultimately harm the administration of justice. 2 ° Justice Stewart adopted the
media's argument that a reporter has a constitutional right to protect his or her
source, stemming from society's interest in a full and free flow of information
to the public. 121
The dissent believed that the media's role as a bulwark for a free society
would be "severely curtailed" if no protection was provided to
newsgatherers. 22 The dissent believed that the right to gather news implies a
right to a confidential relationship between a reporter and a source. 123 While
the Branzburg majority discounted the evidence provided by the media and
First Amendment commentators, 124 the dissent embraced it by saying that
informants are necessary to the newsgathering process and the promise of
confidentiality is necessary for a productive relationship.125 The dissent also
agreed with the media litigants that compelling reporters to disclose their
confidential sources would deter those sources from providing future
118. Branzburg, 408 U.S. at 725 (Stewart, J., dissenting). All references to the
"dissent" will refer to Justice Stewart's dissent. Justice Douglas wrote a separate dissent to
the Court's reversal of the Ninth Circuit that was joined by no other justices in which he
advocated an absolute privilege against compelling testimony about news sources under any
circumstances, except when the reporter is implicated in the crime. United States v. Caldwell,
408 U.S. 665, 712 (1972) (Douglas, J., dissenting).
119. The first sentence of the dissent set the tone: "The Court's crabbed view of the
First Amendment reflects a disturbing insensitivity to the critical role of an independent press
in our society." Branzburg, 408 U.S. at 725 (Stewart, J., dissenting). Stanford Law School
Professor Gerald Gunther seemed to side with Justice Stewart's sentiments in criticizing the
legal reasoning of the majority opinion. See Gerald Gunther, The Supreme Court, 1971
Term-Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for a
Newer Equal Protection, 86 HARV. L. REV. 1, 4 & n.17 (1972) (noting that Branzburg was
one of five specifically-cited cases from the 1971 term in which the newer Justices
"engendered opinions with the most crabbed handling of precedents and the most inarticulate
reasoning.").
120. Id.
121. Id. Justice Stewart noted that this constitutional guarantee was for the protection
of the public more than for the press. Id. at 726, n.2.
122. Id. at 726-28. Justice Stewart stated that hindering the freedom to acquire
information would "impermissibly compromise[ I" the right to publish. Id. at 728.
123. Id.
124. Branzburg, 408 U.S. at 690.
125. Id. at 729-33, nn.8, 9, 15.
2002/03]
THE RULE 501 BLUES
information. 126 In fact, this was even more valid in a grand jury proceeding
because of its virtually unlimited investigatory powers.' 27
The dissent criticized the majority for requiring the media to statistically
prove the number or percentage of people that would be affected before First
Amendment protection was allowed. 28 Justice Stewart noted that the Court's
usual inquiry in First Amendment cases went solely to the issues of: 1) whether
there was a rational connection between the government action and the
impairment of the First Amendment
activity and 2) whether the effect would
29
be more than de minimis. 1
While acknowledging the important societal and historical function of the
grand jury, 30 the dissent noted that the grand jury's power was already limited
by the Fourth and Fifth Amendments and by common law evidentiary
privileges. 131 The dissent advocated an additional First Amendment limitation
to maintain the free flow of information to the public by protecting the
confidential relationship between a reporter and a source.' 32 The dissent
buttressed its desire to create a new privilege not so much on the reporter's
First Amendment right, 3 3 but rather on the need to protect "democratic
decisionmaking through the free flow of information to the public"' 34 and to
honor the "profound national commitment to the principle
that debate on public
' 13 1
wide-open.
and
robust,
uninhibited,
be
should
issues
126. Id. at 731.
127. Id. at 731. Under the majority's decision, the dissent believed that the reporter's
only choices when ordered by a grand jury to disclose a confidential source were to violate
his or her professional ethics by testifying or to be punished by contempt for refusing to
testify. Id. at 731-32.
128. Id. at 733.
129. Branzburg,408 U.S. at 733-34 (1972). The majority did technically conduct such
a First Amendment analysis. Both Justice White's opinion and Justice Powell's concurrence
found that the governmental interest in pursuing a grand jury investigation outweighed the
claimed impairment on the newsgathering process, which impairment Justice White found to
be uncertain. Id. at 690-91, 710 (Powell, J., concurring). The dissent was correct, however,
that the majority seemed to base its test in Branzburg on the failure of the reporters to
empirically prove their cases. See id. at 690.
130. Id. at 736-37 (Stewart, J., dissenting). The dissent agreed with the majority that
the grand jury must have access to "every man's" relevant evidence.
131. Id. at 737.
132. Id. at 738.
133. Id. (stressing again that such a privilege was not directed so much at the reporter
but more to the public's right to know).
134. Branzburg, 408 U.S. at 738.
135. Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). The
dissent clearly realized that there is a longstanding presumption against creating common law
testimonial privileges. While subordinating the reporter's First Amendment's protection to
that of the public's right to know, the dissent asserted that the First Amendment
GONZAGA LAW REVIEW
[Vol. 38:3
The dissent believed that the First Amendment should restrict the grand
jury's power to compel the disclosure of confidential sources unless a
compelling government interest existed. 136 Based on this analysis and its
concern with the grand jury's wide-ranging powers, the dissent believed that
a qualified privilege should be created.' 37
The dissent's qualified privilege would have required the government to
satisfy the following three-prong balancing test whenever a reporter was asked
by a grand jury to reveal a confidential source by demonstrating:
1. That there was probable cause to believe that the reporter had clearly
relevant information to a specific probable violation of law;
2. That the information sought could not be obtained by alternative
means less destructive of First Amendment rights; and
3. A compelling and overriding interest in the information.' 3 8
The dissent believed that the lack of such a balancing test would allow the
government to pursue fishing expeditions and thereby conscript reporters as
one more investigatory tool of the prosecution. 139 Further, the dissent believed
that its balancing test would be the only way to deter the government from not
seeking alternative sources before questioning the media. 4 0
The dissent predicted that the majority's opinion would create a paradox
wherein the reporter would no longer be useful to the prosecution as a grand
jury witness due to the reluctance of sources to come forward, thereby
considerations justified the creation of a new testimonial privilege. Id. at 738 n.24.
136. Id. at 738 (Stewart, J., dissenting).
137. Id. at 742-43.
138. Id. at 743. The dissent would have required the reporter to file a motion to quash
the grand jury subpoena before the government's burden would be triggered.
139. Branzburg, 408 U.S. at 744 n.34.
140. Id. at 745. The dissent feared governmental abuse in situations where the
reporter's information might be obtained from other non-First Amendment sources, yet the
government might still seek the reporter's testimony through a grand jury proceeding. The
dissent's fear of governmental abuse was also a concern addressed by the majority, which
specifically held that an exception to its holding would exist if the grand jury process was
being abused. Id. at 707-08. But see The Supreme Court 1971 Term, supranote 31, at 143-44
(stating that Justice White's good faith test seems minimally protective because it will be
difficult for a reporter to prove that a grand jury is not acting in good faith or solely to disrupt
the reporter's confidential relationships). The chance of governmental abuse in federal
criminal investigations has been substantially lessened by 28 C.F.R. §50.10, which was
enacted in 1973. 28 C.F.R. § 50.10 (2003); see In re Lewis, 384 F. Supp. 133, 137 (C.D. Cal.
1974), aff'd sub nom. Lewis v. United States, 517 F.2d 236, 238-39 (9th Cir. 1975). 28
C.F.R. § 50.10 provides that all federal subpoenas to the news media can only be authorized
by the Attorney General and only then after all alternative sources have been exhausted. 28
C.F.R. § 50.10 (2003).
2002/03]
THE RULE 501 BLUES
undermining the reporter's incentive to investigate stories of public
importance. 141
E. Justice Douglas' DissentAdvocating Absolute Privilege
In a dissent to the Court's reversal of the Ninth Circuit's opinion in
Caldwell, Justice Douglas advocated an absolute privilege
to reporters, except
42
when the reporter was involved in the crime itself. 1
VI. GENERAL EXCEPTIONS TO BRANZBURG
A. Civil Litigation
Because Branzburg's holding was limited to grand jury proceedings and
criminal trials, most courts have concluded that a reporter's lack of a privilege
should be construed more strictly in the criminal than civil arena. 43
' Due to this
141. Branzburg, 408 U.S. at 746 (Stewart, J., dissenting). It is difficult to assess
whether the dissent's fears have come to fruition. Aside from the fact that many state statutes
now provide protection to reporters, there are no studies analyzing whether the media has lost
the confidences of sources. See, e.g., Petheram, supranote 26, at 72 (explaining that the Wall
Street Journal estimated that, in the 1970s, fifteen percent of its articles were based on
confidential information); OLEN, supra note 28, at 49 (stating that statistics indicate that the
Branzburg case has not caused journalists to lose access to sources). A contention that
Branzburg has not harmed the media's relation to news sources could be discounted by the
fact that a very small percentage of these sources rise to the level of a high-profile case such
that the reporter's knowledge becomes crucial to an investigation. Ironically, those would be
the cases in which the confidentiality is of utmost importance.
142. United States v. Caldwell, 408 U.S. 665, 712 (1972) (Douglas, J., dissenting).
143. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980)
(holding that First Amendment privilege is stronger in a defamation case than in a criminal
case); Riley v. City of Chester, 612 F.2d 708, 716 (1979) (holding that the need to protect a
source is mandated even more in civil cases than in criminal cases); Silkwood v. Kerr-McGee
Corp., 563 F.2d 433, 436 (10th Cir. 1977) (noting that Branzburg has been limited in its
scope to criminal cases and that a qualified privilege was developing in civil actions); May
v. Collins, 122 F.R.D. 535, 539 (S.D. Ind. 1988) (citing Altemose Constr. Co. v. Bldg. &
Const. Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977) (holding that public interest
in protecting a reporter's source should be given greater weight in a civil proceeding)); Laxalt
v. McClatchy, 116 F.R.D. 438, 452 (D. Nev. 1987) (holding that there are no constitutional
implications in a defamation case sufficient to override state shield law); KSDO v. Superior
Court, 136 Cal. App. 3d 375, 385, 186 Cal. Rptr. 211, 217 (Cal. 1982) (noting that, in
criminal cases, "it appears clear that public interest in law enforcement creates a substantial
need for disclosure"); Bell v. City of Des Moines, 412 N.W.2d 585, 587 (Iowa 1987)
(involving a wrongful death lawsuit against a city); CBS, Inc. v. Campbell, 645 S.W.2d 30,
32 (Mo. Ct. App. 1982) (noting that courts disclose a greater willingness to provide protection
for the media in civil and criminal cases than in grand jury proceedings); State v. Henry, 389
S.E.2d 188, 193 (W. Va. 1989) (holding that qualified privilege will yield in grand jury
GONZAGA LAW REVIEW
[Vol. 38:3
analysis, most courts have held that the Branzburg rejection of a qualified
privilege is not applicable in civil cases, 14 thereby allowing the imposition
of
146
45
Justice Stewart's three-step balancing test' or some variation thereof.
B. The Sixth Amendment
Many courts have also limited Branzburg's application in criminal trials
when a legitimate and reasonable Sixth Amendment claim has been asserted by
a defendant who seeks to compel the disclosure of a reporter's
confidential
47
information in an attempt to prove the defendant's innocence. 1
C. Reporters who Witness the Crime
Finally, Branzburg specifically held that journalists
who had personally
48
observed a crime would clearly have no privilege.
VII. THE CONGRESSIONAL RESPONSE TO BRANZBURG
Immediately after the Branzburg decision, numerous members of the 92d
Congress expressed displeasure with the opinion.' In an attempt to overturn
proceedings, but will be applied vigorously in civil cases).
144. See Daniel M. Faber, Comment, Coopting the Journalist'sPrivilege: Of Sources
and Spray Paint,23 N.M. L. REV. 435, 443 (1993) (noting that at least nine federal circuits
have recognized a journalist's privilege in civil cases).
145. Ashcraft v. Conoco, Inc., 218 F.3d 282, 287 (4th Cir. 2000) (involving civil
contempt against a reporter); Riley, 612 F.2d at 716 (involving civil contempt against a
reporter).
146. See, e.g., Bell, 412 N.W.2d at 587 (requiring probability that evidence is necessary
and cannot be secured from any less intrusive source); Silkwood, 563 F.2d at 438 (involving
a civil deposition subpoena duces tecum to journalist).
147. State v. Rinaldo, 102 Wash. 2d 749, 757, 689 P.2d 392, 396 (1984) (Russellini,
J., concurring and dissenting); see United States v. LaRouche Campaign, 841 F.2d 1176, 1182
(1st Cir. 1988); United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983); United States v.
Criden, 633 F.2d 346, 358 (3d Cir. 1980); United States v. King, 194 F.R.D. 569, 585 (E.D.
Va. 2000); United States v. Liddy, 354 F. Supp. 208, 214-215 (D. D.C. 1972); Coleman v.
State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998); State ex rel. Charleston Mail Ass'n
v. Ranson, 488 S.E.2d 5, 10-11 (W. Va. 1997); State v. Siel, 444 A.2d 499, 502 (N.H. 1982);
Brown v. Commonwealth, 204 S.E.2d 429, 431 (Va. 1974); State v. Geis, 441 N.E.2d 803,
810 (Ohio Ct. App. 1981).
148. Branzburg v. Hayes, 408 U.S. 665, 708-09 (1972).
149. See 118 CONG. REC. S28647 (daily ed. Aug. 17, 1972) (statement of Sen.
Mondale) (stating that Branzburg was another threat to the freedom of the press); 118 CONG.
REC. H33543 (daily ed. Oct. 3, 1972) (statement of Rep. Waldie) ("I think that the
[Branzburg] decision was wrong as a matter of law."); see also 118 CONG. REC. S32989
(daily ed. Sept. 30, 1972) (statement of Sen. Fulbright) (noting that the conflict between a
2002/03]
THE RULE 501 BLUES
the Court's ruling, a number of bills and resolutions
were introduced that
1 50
would have created a federal reporter's privilege.
On June 30, 1972, the day after the Branzburg decision was announced,
Senator Cranston introduced Senate Bill 3786,151 which proposed an absolute
privilege for confidential sources and information. A companion bill, House
Resolution 15972, was introduced by Representative Waldie, which would
have assured "a newsman absolute protection of his news sources. '"152
Representative Waldie believed that the Branzburg decision was part of a
concerted effort by the Nixon Administration to curtail individual freedoms
guaranteed by the Bill of Rights.1 53 Representative Waldie's bill, like Senator
Cranston's, would have adopted Justice Douglas' dissenting belief that
supported an absolute privilege protecting all confidential sources.' 54
On August 16, 1972, Senator Ervin introduced Senate Bill 3925, entitled
155
"An Act to Regulate the Testimony of Newsmen in Federal Criminal Cases."'
Senate Bill 3925 would have required a reporter to testify only if it could be
shown that: 1) the reporter had personal knowledge of the facts; 2) the facts
would show that a crime had been committed by a third party; and 3) the
information was not readily obtainable from another source. 156
free press and the duty that everyone must testify was highlighted by the Branzburg decision);
118 CONG. REC. H29668 (daily ed. Sept. 7, 1972) (statement of Rep. Kastenmeier) (stating
that the dilemma faced by reporters was highlighted by the Branzburg decision). Members
of Congress unsuccessfully attempted to create a reporter's privilege just prior to Branzburg,
which spawned, in part, from the cases that were ultimately decided in Branzburg. See supra
note 60. It has also been noted that federal shield laws have been proposed since 1929, but
never enacted. See Faber, supra note 144, at 440.
150. See, e.g., S. 3932, 28647, 92d Cong. (1972); S. 3925, 28462, 92d Cong. (1972);
H.R. 15972, 33543, 92d Cong.(1972); S. 3786, 92d Cong. (1972); H.R. 215, 94th Cong.
(1975).
151. S. 3932, 92d Cong. (1972); see also, 118 CONG. REC. S33610 (daily ed. Oct. 4,
1972) (statement of Sen. Cranston) (siding with Justice Douglas' strict construction of the
First Amendment and stating that "no exception, no limit, no qualification should be placed
on a total and absolute privilege of press confidentiality").
152. 118 CONG. REc. H33543 (daily ed. Oct. 3, 1972) (statement of Rep. Waldie).
153. Id.
154. Id. Representative Waldie believed that permitting a qualified privilege, as
advocated by Justice Stewart, would still hinder a reporter's newsgathering abilities and
would be subject to the same abuses and "open-ended" interpretations that he believed
Branzburg created. See also 118 CONG. REC. S33610 (daily ed. Oct. 4, 1972) (statement of
Sen. Cranston) (stressing the need for an absolute privilege by saying that "protection shot
full of loopholes is no protection at all"). While rejecting Judge Stewart's balancing test, Rep.
Waldie wholeheartedly endorsed Justice Stewart's contention that the majority opinion would
annex the news media as an arm of the government.
155. 118 CONG. REC. S28462 (daily ed. Aug. 16, 1972) (statement of Sen. Ervin).
156. See S. 3925, 92d Cong. (1972).
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[Vol. 38:3
The following day, Senator Mondale introduced Senate Bill 3932, entitled
the "Free Flow of Information Act of 1972," because he believed that the
Branzburg decision came "perilously close" to imposing a major obstruction
in the gathering and reporting of news.' 57 Senator Mondale argued that the
entire nation would suffer if the free press became less free and if reporters
became less able to report.' 58 Senator Mondale's bill would have adhered to
the three-prong test advocated by Justice Stewart, requiring the government to
show relevance, exhaustion of other sources, and a compelling and overriding
national interest in the information.' 59 The 92d Congress chose not to enact
any legislation that would protect a reporter's confidential sources.
During the 94th Congress in 1975, Representative Koch introduced House
Resolution 215, entitled the "Newsman's Right to Privacy Act," which would
have precluded the disclosure of the identity of a confidential source unless
there was a "compelling and overriding national interest."'' 60 Ultimately,
neither the 94th Congress nor any session thereafter enacted legislation that
would have created a federal reporter's privilege.
VIII. THE DEPARTMENT OF JUSTICE GUIDELINES FOR
SUBPOENAING THE MEDIA
While Congress was unable to enact federal legislation, the executive
branch responded shortly after the Branzburg decision with a regulatory policy
statement adopted by the Department of Justice as 28 C.F.R. § 50.10
(hereinafter referred to as the "Policy Statement").' 61 Section 50.10 was
adopted to ensure that federal subpoenas of the news media, both civil and
157. 118 CONG. REc. S28647 (daily ed. Aug. 17, 1972) (statement of Sen. Mondale).
158. Id.
159. Id. at 28648. Senator Mondale believed that his bill would have placed a heavy
burden on the government and would have protected both confidential and non-confidential
sources. Id.
160. 121 CONG. REC. H4189 (daily ed. Feb. 25, 1975) (statement of Rep. Koch).
Representative Koch noted that this resolution would have placed a severe burden on the
government to justify disclosure. Id. at 4190. Representative Kastenmeier, without
attempting to enact the legislation, also attempted to resuscitate interest in H.R. Resolution
215 by holding hearings during the 94th Congress. 121 CONG. REC. H 10279 (daily ed. Apr.
15, 1975) (statement of Rep. Kastenmeier).
161. 28 C.F.R. § 50.10 was formally adopted in 1973. See In re Lewis, 384 F. Supp.
133, 137 (1974), aff'd sub nom. Lewis v. United States, 517 F.2d 236, 238 (9th Cir. 1975).
The underlying guidelines, however, had been internally issued by the Department of Justice
("DOJ") prior to the Branzburg decision. See Henderson, supra note 5, at 392; see also 118
CONG. REC. H29688 (daily ed. Sept. 7, 1972) (statement of Rep. Kastenmeier) (scheduling
hearings on the Newsman's Privilege Act to include discussion about the "1970" DOJ
guidelines on subpoenas to the news media).
2002/03]
THE RULE 501 BLUES
criminal, would be conducted in good faith.162 Section 50.10 specifically notes
that "the prosecutorial power of the government should not be used in such a
way that it impairs a reporter's responsibility to cover as broadly as possible
controversial public issues.' 63 The introduction of § 50.10 states that the
policy is to protect the news media from compulsory process, which might
hamper the newsgathering function. 164 The Policy Statement's purpose was to
create guidelines that would balance the public's right to the free flow of
information with the government's obligation to the fair administration of
justice. 165
In order to accomplish this, the Policy Statement requires that all
reasonable attempts be made to acquire the information from alternative
sources before subpoenaing a member of the news media. 166 Prior to the
issuance of subpoenas, the requesting federal agency must negotiate with the
67
news media to see if the latter will release such information voluntarily,
except in situations where such negotiations
might pose a substantial threat to
68
the integrity of the investigation. 1
Unless the media agrees to provide the information voluntarily, 69 a federal
subpoena cannot be issued until the United States Attorney General expressly
authorizes it.'70 In order to obtain such express approval in criminal cases,' 7'
162. See Henderson, supra note 5, at 393.
163. 28 C.F.R. § 50.10 (2003).
164. Id.
165. Id. Although some of the concepts contained in Justice Stewart's dissent, such as
the need to exhaust alternative sources, were included in the Policy Statement, it is clear that
the Policy Statement adhered to the majority's test of balancing the public's interest in the
free flow of information with the public's interest in effective law enforcement. 28 C.F.R.
§ 50.10(a) (2003).
166. 28 C.F.R. § 50.10(b) (2003). This is also a prerequisite before the government can
issue subpoenas for telephone toll records of members of the media.
167. 28 C.F.R. § 50.10(c) (2003).
168. 28 C.F.R. § 50.10(d) (2003). An exception also exists precluding the necessity of
negotiations with the media when it is clear that such negotiations would be fruitless. See
Lewis v. United States, 517 F.2d 236, 238 (9th Cir. 1975). Federal agents should exercise
caution in relying upon this exception, however, because negotiations with the media
regarding confidential sources should always prove inherently futile in light of the media's
obligation to protect such sources. See OLEN, supra note 28, at 41 (stating that the obligation
to maintain a source's confidentiality is an obligation not only to the source, but tojournalism
as well). As a matter of course, federal agents should make such attempts unless unique
circumstances exist.
169. Even when the media agrees to provide the requested information, the Policy
Statement requires that the United States Attorney or the responsible Assistant Attorney
General must submit a report to the Office of Public Affairs detailing the circumstances
surrounding the issuance of the subpoena. 28 C.F.R. § 50.10(e) (2003).
170. Id.
171. While not a focus of this article, § 50.10(f)(2) provides that civil subpoenas may
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the submission to the Attorney General must avow that there are reasonable
grounds to believe, based on information obtained from non-media sources,
that a crime has occurred and that the information is essential-not peripheral
or speculative-to a successful investigation, particularly in establishing guilt
or innocence. 7 2 Obtaining the Attorney General's approval after such an
exhaustive process should eliminate any legitimate claim that a federal grand
jury subpoena was issued in bad faith, thereby satisfying Branzburg.'73
The only exception to the requirement of pre-approval by the Attorney
General 4 listed in § 50.10 relates to when a reporter has been arrested or is
being questioned about possible criminal involvement.'
In either of these
situations, the Attorney General and the Director of Public Affairs must be
notified immediately.'76
While it appears that federal agencies make every effort to abide by the
Policy Statement, violation of these rules results in no substantive sanctions. 77
'
The Policy Statement itself militates against overturning a non-compliant
subpoena or suppressing evidence obtained in violation of the policy. Instead,
it specifically states that failure to obtain the prior approval of the Attorney
not be issued until the government has satisfied the Attorney General that the information
sought is essential to the successful completion of the litigation in a case of substantial
importance. 28 C.F.R. § 50.10(0(2) (2003).
172. 28 C.FR. § 50.10(f)(1) (2003).
173. See Shain v. United States, 978 F.2d 850, 853 (4th Cir. 1992); Lewis, 517 F.2d at
238-39; In re Ziegler, 550 F. Supp. 530, 532-33 (W.D.N.Y. 1982). A review of publications
and statistical information available from the Administrative Office of the U.S. Courts and
the Department of Justice found no public data regarding the number of requests submitted
for the Attorney General's consideration or the percentage of such requests authorized.
174. While not found in the Policy Statement, some courts have carved out an
independent counsel exception to obtaining approval from the Attorney General under §
50.10. In the Whitewater case, a district court found that the independent counsel is, as the
name suggests, independent of the Attorney General, thereby eliminating the need to seek
such approval. In re Grand Jury Subpoena Am. Broad. Co., 947 F Supp. 1314, 1321-22 (E.D.
Ark. 1996). Another district court found that the independent counsel is bound by § 50.10,
but that the independent counsel stands in the shoes of the Attorney General so there is no
need for the independent counsel to obtain the Attorney General's approval. In re Grand Jury
95-1, 59 F. Supp. 2d 1, 6 (D. D.C. 1996). Additionally, the Supreme Court has created a good
faith exception to such violations. See In re Caceres, 440 U.S. 741, 757 (1979) (finding that
violation ofpre-electronic monitoring procedures under IRS Manual 652.22 would not result
in quashing the monitoring if it appears that Justice Department approval would have been
forthcoming and if the procedural requests had been made on a timely basis).
175. See 28 C.F.R. § 50.10(h) (2003).
176. 28 C.F.R. §§ 50.10(h), (1) (2003).
177. See In re Shain, 978 E2d at 853-54; In re GrandJury Subpoena Am. Broad. Co.,
947 F. Supp. at 1322. But see In re Williams, 766 F. Supp. 358, 371 (W.D. Pa. 1991), aff'd
by an equally divided court, 963 F.2d 567 (3d Cir. 1992) (quashing grand jury subpoenas
because the government failed to comply with the policy's requirement to make reasonable
attempts to obtain the information from alternative non-media sources).
2002/03]
THE RULE 501 BLUES
General may constitute grounds for an administrative reprimand or other
appropriate disciplinary action. 78 Nothing in the Policy Statement provides
for any type of judicial or contemptuous sanction. On the contrary, it states
that the principles contained in the policy are not intended to establish or
recognize any legally enforceable right in any person.' 79
Some courts have either questioned or outright rejected the standing of
subpoenaed media witnesses to quash subpoenas that were obtained in possible
violation of § 50.10.180 Other courts have specifically held that the exclusion
of evidence or quashing of subpoenas is not mandated by § 50.10 because the
only remedy provided by the regulation is internal discipline.' 8
Despite whatever protection may be afforded by the Policy Statement,
legally justifiable scenarios still exist that could result in state authorities
obtaining confidential information from federal investigations that would
normally be blocked by state shield laws. For example, if the federal authorities
proceeded independently from a state investigation and received Attorney
General authorization for a subpoena, the journalist could be required in a
federal grand jury proceeding to disclose the information when it may have
been prohibited by a state shield law. At that point, it is conceivable that the
federal investigation, absent collusion, could legitimately provide the
information to the state prosecution. In such a situation, the information, which
may not have been discoverable or admissible under82state law, may very well
become discoverable and admissible in state court. 1
178. 28 C.F.R. § 50.10(n) (2003); see also In re GrandJury Subpoena Am. Broad. Co.,
947 F. Supp. at 1322 (noting that the DOJ guidelines themselves do not create any
enforceable right for the individual receiving the subpoena).
179. 28 C.F.R. § 50.10(n).
180. See In re Grand Jury 95-1,59 F Supp. 2d 1, 16 ( D. D.C. 1996); In re GrandJury
Subpoena Am. Broad. Co., 947 F Supp. at 1322.
181. See In re Shain, 978 F.2d at 853-54; In re GrandJury Subpoena Am. Broad.
Co., 947 F. Supp. at 1322. The precedent for this rationale derives from an earlier Supreme
Court case that refused to create a rule that would exclude evidence obtained as a result of
violation of IRS electronic surveillance regulations. See United States v. Caceres, 440 U.S.
741, 755-56 (1979). IRS Manual T 652.22 contained similar penalty provisions as provided
in § 50.10. In Caceres, the Supreme Court rejected an attempt to quash recorded
conversations that had been obtained in violation of T 652.22, holding that the exclusionary
rule should not be applied in the face of internal disciplinary remedies. Id. (stating that any
judicial exclusionary rule would take away the Executive Department's primary responsibility
for fashioning a remedy).
182. This scenario is possible under what has been called the "Reverse Silver Platter
Doctrine." To understand this doctrine, it is best to briefly explain the "Silver Platter
Doctrine" from which it is derived. The Silver Platter Doctrine originated in Weeks v. United
States, wherein the Supreme Court created the exclusionary rule for federal agents, but
refused to apply it to state seizures conducted in violation of the Fourth Amendment. 232 U.S.
383 (1914). The Silver Platter Doctrine provided that evidence gathered by state officials in
unconstitutional searches was admissible in federal court, even though the evidence would
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Despite such limitations, the Policy Statement is a good faith effort 8to3
protect the Fifth Estate while still promoting the needs of law enforcement. 1
The media's greatest challenge, however, in combating a federal criminal
subpoena is not in contesting the Policy Statement, but rather attempting to
defeat the application of Rule 501 of the Federal Rules of Evidence.
have been inadmissible if it had been seized by federal officials. The doctrine maintained
some validity in Wolf v. Colorado. 338 U.S. 25 (1949), overruled on other groundsby Mapp
v. Ohio, 367 U.S. 643 (1961). While Wolf prohibited unreasonable searches and seizures by
state officials, it seemed to leave open the question that such evidence might not be excluded
if used in a federal case. The doctrine, as it applied to federal cases, was abolished in Elkins
v. UnitedStates. 364 U.S. 206 (1960). Elkins held that evidence obtained in a search by state
officers, which, if conducted by federal officers, would have violated the Fourth Amendment,
is inadmissible in a federal criminal trial. Id. at 223-24. The Reverse Silver Platter Doctrine
pertains to the use by state officials of evidence legally seized by federal or out-of-state
officials that would be illegally seized if performed by state officials. The states that have
admitted such evidence have generally held that as long as a seizure, warrant, or order was
legally valid in the jurisdiction in which it was issued, there is no public policy reason that
would prohibit its use in state court, even though such issuance would have been illegal under
state law. These courts have generally held that their respective state statutes do not cover
federal agents and that the refusal to admit such legally-obtained evidence by federal agents
would not further the purposes of the exclusionary rule. See State v. Bridges, 925 P.2d 357,
367 (Haw. 1996) (regarding electronic eavesdropping); State v. Toone, 872 S.W.2d 750, 752
(Tex. Crim. App. 1994) (involving a search warrant); State v. Mechtel, 499 N.W.2d 662, 667
(Wis. 1993) (involving a search warrant); Tarawneh v. State, 562 So.2d 770, 772 (Fla. Dist.
Ct. App. 1990) (regarding eavesdropping). These courts generally allow evidence legally
obtained by federal agents under federal law, unless collusion exists such that the federal
agents were deemed to be acting under color of state law. If such collusion is found, these
courts will refuse to admit such evidence on the assumption that the state agents were using
the federal agents to sidestep the stricter requirements of state law. See People v. Accardo,
551 N.E.2d 1349, 1355 (Il. App. Ct. 1990), appeal denied, 561 N.E.2d 695 (1990)
(explaining that wiretap evidence was admitted because there was no evidence of collusion
by agents to circumvent Illinois law); People v. Fidler, 391 N.E.2d 210, 211 (I. App. Ct.
1979) (holding that no collusion was found in federal wiretap because federal agents were
pursuing a wholly federal investigation); Basham v. Commonwealth, 675 S.W.2d 376, 381-82
(Ky. 1984) (stating that no collusion was found in a wiretap case, despite the fact that federal
and state agents worked together, because each agency was acting separately to investigate
its own respective prosecution); State v. Minter, 561 A.2d 570, 577-78 (N.J. 1989)
(remanding for a determination of whether federal agents were obtaining wiretap information
at the request of state agents for use in a state prosecution); State v. Mollica, 554 A.2d 1315,
1328-29 (N.J. 1989) (stating that no collusion was found because federal agents
independently and lawfully seized telephone records, which were later turned over to state
officials); State v. Gwinner, 59 Wash. App. 119, 126-27, 796 P.2d 728, 732 (1990), review
denied, 815 P.2d 266 (Wash. 1991) (involving warrantless seizure in which the court found
no collusion because state official merely conveyed information to a federal official without
a request for any action).
183. But see Neubauer, supra note 79, at 184 (arguing that the protection afforded to
the media by C.F.R. § 50.10 was "tenuous").
2002/03]
THE RULE 501 BLUES
IX. RULE 501 OF THE FEDERAL RULES OF EVIDENCE18 4
Rule 501 of the Federal Rules of Evidence became effective on July 1,
1975.185 In criminal federal court cases, Rule 501 requires the trial court to
determine all witness privileges as recognized by the common law "in the light
of reason and experience."' 86 An alternative proposal submitted to Congress
in 1974, prior to Rule 50 1's enactment, recommended that the Rule specifically
list the non-constitutional privileges that federal courts had previously
recognized. 187 These privileges comprised the attorney-client,
psychotherapist-patient, husband-wife, clergy-penitent, political vote, trade
secrets, state secrets, and identity of informers. 88 The aforementioned
alternative proposed list submitted to Congress in 1974 did not include a
reporter-source privilege.' 89
The Committee that drafted Rule 501 chose not to accept the alternative
submittal that listed specific privileges, opting instead for a more open rule that
would maintain the existing common law privileges 9 ° and allow for further
development of privileges by federal courts.'' Under Rule 501, state-based
184. See supra note 4.
185. See United States v. Allery, 526 F.2d 1362, 1364 n.2 (8th Cir. 1975). For a review
of the legislative history of Rule 501, see In re Lewis, 384 F. Supp. 133, 139 (C.D. Cal.
1974).
186. FED. R. EvID. 501. Prior to the enactment of Rule 501, one federal court in a civil
libel case held that the question of a reporter's privilege was not a matter of substance and
thus not controlled by the ruling in Erie RailroadCompany v. Tompkins, 304 U.S. 64 (1938),
thereby implicating the application of federal procedural rules. Exparte Sparrow, 14 F.R.D.
351, 353 (N.D. Ala. 1953). Nonetheless, the federal district court in Ex parte Sparrow held
that it was appropriate to apply the state shield law of Alabama in the absence of any federal
rule on a reporter's privilege. Id.
187. FED.R. EvID. 501 (Advisory Committee Notes).
188. Id.
189. Id. One of the few federal cases dealing with a reporter's privilege prior to
Branzburg explicitly noted that no federal privilege for reporters existed in New York. See
Exparte Sparrow, 14 FR.D. at 353.
190. FED. R. EvID. 501 (Advisory Committee Notes) (stating, in part, that "It should
be clearly understood that, in approving this general rule as to privileges, the action of
Congress should not be understood as disapproving any recognition of.. .the enumerated
privileges contained in the Supreme Court rules.").
191. Id. The Committee clarified that its action reflected the view that the recognition
of a privilege based on a confidential relationship and other privileges should be determined
on a case-by-case basis. When a federal court absorbs a state-based privilege, it is applying
that state law as federal common law. Id. (noting that when a federal court adopts a state
privilege, such court's decision turns on the law of the United States); see also In re Lewis,
517 F.2d 236, 237 (9th Cir. 1975) (holding that while a federal court in a federal question
case may consider a state privilege law, the ultimate rule adopted by the court is federal
common law and not state law).
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privileges have no application in federal criminal cases, 92
' federal question civil
cases,193 and non-diversity cases. 194 Only in civil diversity cases does Rule 501
allow the state-based privilege to control.195 Nearly all federal courts interpret
Rule 501 in line with Branzburg to reject a reporter's privilege and
require the
96
disclosure of confidential information in criminal proceedings. 1
X. FEDERAL COLLISIONS WITH STATE SHIELD LAWS
Because Rule 501 does not recognize state-based privileges in federal
criminal cases, a different result will likely occur in a confidential source case
brought in federal court compared to the same case pursued in state court.
High profile crimes, bank robberies, and white collar offenses are often
192. See In re Grand Jury Subpoena Am. Broad. Co., 947 F. Supp. 1314, 1321 (E.D.
Ark. 1996) (holding that state law reporter shield privileges do not apply to federal grandjury
subpoenas); see also FED. R. EvID. 501 (Advisory Committee Notes).
193. FED. R. EvID. 501 (Advisory Committee Notes); see also Riley v. City of Chester,
612 F.2d 708, 713-14 (3d Cir. 1979) (determining media privilege by federal law in federal
civil rights action); May v. Collins, 122 F.R.D. 535, 538 (S.D. Ind. 1988) (determining media
privilege under federal law in federal civil rights action).
194. FED. R. EVID. 501 (Advisory Comnittee Notes).
195. FED. R. EvID. 501 (Advisory Committee Notes). This proviso was included to
abide by the Court's ruling in Erie Railroad Co. v. Tompkins. 304 U.S. 64 (1938); see also
Ashcraft v. Conoco, Inc., 218 F.3d 282, 285 n.5 (4th Cir. 2000) (stating that evidentiary
privilege in a diversity action was governed by the law of the forum state); In re Application
to Quash Subpoena to Nat'l Broad. Co., 79 F.3d 346, 351(2d Cir. 1996) (holding that Rule
501 required New York's reporter privilege law to apply in a diversity case); Miller v.
Transamerican Press Inc., 621 F.2d 721, 721 (5th Cir. 1980) (holding that, under Rule 501,
the law of the forum state governs the availability of a privilege); In re Lewis, 517 F.2d at 237
n.2 (noting that Rule 501 has codified state privilege law as binding in diversity cases).
196. The Third Circuit, which has adopted a qualified privilege, occasionally uses Rule
501 against the government. For example, in a case involving a grand jury subpoena of media
documents, the government relied upon Branzburg in its opposition to the media's motion to
quash. See In re Williams, 766 F. Supp. 358, 360 (W.D. Pa. 1991), aff'd by an evenly divided
court, 963 F.2d 567 (3d Cir. 1992). The government contended that the media possessed no
protection from disclosing such information to a grand jury, especially in light of its
contention that the government had an overriding interest in investigating crimes. Id. at 360.
The government was attempting to identify individuals who had leaked FBI reports to the
news media in the face of a court order prohibiting such disclosure. The District Court in that
case opined that the adoption of Rule 501 appeared to negate the government's interpretation
of Branzburg. Id. at 367. But see In re Grand Jury Subpoena Am. Broad. Co., Inc., 947 F.
Supp. at 1321 (holding that state-based shield laws will not protect a reporter in a federal
proceeding based solely on federal claims). The District Court in Williams noted that, since
Branzburg and the adoption of Rule 501, its Circuit had unequivocally recognized a
journalist's federal common law qualified privilege to refuse to divulge sources. In re
Williams, 766 F. Supp. at 368 (citing Riley, 612 F.2d at 715). While Riley was a civil case,
the Third Circuit later extended such a qualified privilege to criminal cases. See United States
v. Criden, 633 F.2d 346, 357 (3d Cir. 1980).
2002/03]
THE RULE 501 BLUES
investigated or prosecuted under both federal and state criminal statutes. If one
of these cases involved a news story derived from a confidential source, either
the investigation or prosecution or both could require disclosure in a federal
proceeding when it would be more difficult, if not prohibited, from obtaining
disclosure in the home state. This section will synthesize and highlight the
specific conflicts, on a circuit-by-circuit basis, that could arise from the
federally-countenanced disregard of state shield laws in criminal matters.
A. The Districtof Columbia Circuit-A Conflict with its Only Jurisdiction
There is a conflict between the District of Columbia Circuit and its only
local jurisdiction. The United States Court of Appeals for the District of
Columbia has unequivocally stated that Branzburg rejected the possibility of
any type of qualified privilege for a reporter, thus requiring the reporter to
testify unless the government or grand jury participates in indiscriminate
probing for news sources.197 The District of Columbia Circuit has also applied
Branzburg to criminal trials, 198 although it requires an in camera review to
insure that there is a substantial connection between the information desired
from the witness and the overriding interest of society in the subject matter of
the investigation.19 9
On the other hand, the District of Columbia Code provides for an absolute
privilege from disclosure of the source and a qualified privilege as to the
underlying information.200 Thus, a reporter would be required to disclose a
confidential source in a federal proceeding, while the same reporter might be
able to protect that source under the local statute.
197. In re Possible Violations of 18 USC 371, 564 F.2d 567, 570-71 (D.C. Cir. 1977).
198. United States v. Liddy, 478 F.2d 586, 587 (D.C. Cir. 1972); In re Grand Jury 95-1
Subpoena Duces Tecum, 59 F. Supp. 2d 1, 14 (D. D.C. 1996).
199. Liddy, 478 F.2d at 587. The D.C. Circuit noted that the secrecy of the grand jury
provided a level of protection that does not exist in a criminal proceeding due to the public
nature of a trial. Because of this, the D.C. Circuit held that before such information is made
public, the trial court should determine the least drastic means of releasing this information.
Id. In Liddy, the court was faced with a Sixth Amendment claim that the information was
needed for the defense to impeach a government witness. The court believed that society's
interest in insuring a fair trial outweighed the media's confidentiality claim. Id. at 587-88.
200. D.C. CODE ANN. § 16-4701 (2001). The qualified privilege as to the underlying
information can be defeated by clear and convincing evidence from the requesting party that:
1) the information is pertinent to a significant legal issue; 2) the information could not be had
by any other means; and 3) there is an overriding public benefit to be had in the disclosure.
D.C. CODE ANN. § 16-4703(a) (2001).
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B. The FirstCircuit-Two-Fifthswith Qualified Privilege Shield Laws
The First Circuit has adhered to Branzburg in both grand jury and criminal
proceedings.2 ' A federal criminal subpoena against a reporter would not affect
the results of local proceedings brought in Massachusetts or Puerto Rico
because Massachusetts follows Branzburg on a case-by-case basis202 and
Puerto Rico has no shield law.
However, conflicts might arise between federal courts and state criminal
cases brought in New Hampshire 20 3 and Rhode Island, 2°4 both of which provide
for a qualified privilege in one form or another. There may or may not be a
201. United States v.LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988).
202. See In re John Doe Grand Jury Investigation, 574 N.E.2d 373, 375 (Mass. 1991)
(stating that a court must weigh the public interest in having every person's evidence
available with the public interest in the free flow of information); see also Promulgation of
Rules Regarding the Protection of Confidential News Sources, 479 N.E.2d 154, 156 (Mass.
1985) (responding to a Governor's Task Force requesting the state supreme court to adopt a
reporter's privilege, the Massachusetts Supreme Court declined to do so without ruling on
whether it had the power to create such an evidentiary rule).
203. See State v. Siel, 444 A.2d 499, 503 (N.H. 1982) (providing for a qualified
privilege in criminal cases, which can be overcome by the requesting party showing that: 1)
it has failed to obtain the information by all reasonable means; 2) the information would be
relevant to the claim; and 3) there is a reasonable probability that the information sought
would influence the verdict). Although the precise issue in Siel pertained to a Sixth
Amendment claim by the defendant, the court did not limit its holding to that circumstance.
Instead, the New Hampshire Supreme Court held that its state constitution, which provided
a qualified privilege in civil cases, extended the privilege to criminal cases. Id. Unfortunately,
the court in Siel incorrectly stated that the Branzburg majority recognized a qualified First
Amendment privilege for reporters to protect confidential sources, despite Branzburg's
specific rejection of that concept. See id. at 502. The court in Siel also fell into the same trap
as other courts have in interpreting Branzburg by extending a qualified privilege allowed in
civil proceedings to criminal proceedings without analyzing the difference in public interest
and secrecy between a grand jury and a civil proceeding. See, e.g., United States v. Criden,
633 F.2d 346, 357 (3d Cir. 1980).
204. R.I. GEN. LAWS. §§ 9-19.1-2, 9-19.1-3 (1997) (providing for a qualified privilege
both as to the identity and the source, which can be overcome if the requesting party shows
substantial evidence that: 1) disclosure is necessary to allow a criminal prosecution or to
prevent a threat to human life and 2) the source of information cannot be had from other
witnesses). In a case involving a grand jury subpoena, the Rhode Island Supreme Court held
that its Newsman's Privilege Act applied only to confidential information, thereby allowing
the disclosure of non-confidential videotapes that were not broadcast, commonly known as
"outtakes." Outlet Communications, Inc. v. State, 588 A.2d 1050, 1052 (R.I. 1991). The
opinion is somewhat confusing because the court then stated that there is no First Amendment
protection of confidential information in grand jury proceedings. Id. This comment seems to
be superfluous because it appears that if the case had involved confidential information, the
state shield law would have protected the information, subject to the statutory balancing test.
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THE RULE 501 BLUES
conflict in Maine, which has not ruled on disclosure of confidential
information.205
C. The Second Circuit-Conflictin New York
The Second Circuit adheres to Branzburg in both grand jury and criminal
proceedings.20 6 This would create no conflict in Vermont, which holds that
there is no privilege in grand jury or criminal proceedings." 7 It appears that it
would also create no conflict in Connecticut, which has no statutory provision
or decisional ruling on the issue of press subpoenas. 0 8 It would create a
substantial conflict with New York law, which has a statutorily-created
absolute privilege for confidential information and a qualified privilege for
non-confidential sources and information.20 9
D. The Third Circuit-Complete Conflict with States' Absolute Privileges
The Third Circuit is the only federal circuit to interpret Branzburg as
imposing a qualified privilege and requiring the three-step test advocated by
Justice Stewart's dissent. In United States v. Criden,210 the Third Circuit
205. Maine has ruled that there is no reporter's privilege when the information is not
confidential, leaving open the question of whether there might be such a privilege with
confidential information. See In re Letellier, 578 A.2d 722, 723-24 (Me. 1990).
206. See United States v. Cutler, 6 F.3d 67, 73 (2d Cir. 1993) (stating that Branzburg
rejected a qualified privilege and balancing test and that it would follow Branzburg "when
fact patterns parallel to Branzburg are presented..."). It should be noted that Cutler's ruling
pertained solely to defense subpoenas in a criminal case because the issue of the prosecutor's
subpoena was not raised in the appeal. Id. at 70 n.3. In following Branzburg, the Cutlercourt
affirmed the district court's quashing of the media's subpoenas, except in those instances
where the subject matter of the subpoenas was not relevant to the case. Id. at 75.
207. State v. St. Peter, 315 A.2d 254, 255 (Vt. 1974). Vermont has created a qualified
privilege in criminal proceedings that requires a showing that there are no other available
sources and the information is relevant and material on the issue of guilt or innocence. Id. at
256. If the test is met, the identity of the source, as well as the information, is discoverable.
Id.
208. CONN. GEN. STAT. ANN. §§54-33a, 54-33j (West 2001) (stating that journalists
have statutory protection from search warrants, unless the journalist or the media entity has
committed the crime related to the warrant).
209. N.Y Civ. RIGHTS LAW § 79-h (McKinney 1992). Contempt is available against
a reporter for failing to disclose non-confidential sources of unpublished news or the news
itself, if it can make a clear and specific showing that the news is: "l) highly material and
relevant; 2) is critical or necessary to the maintenance of a party's claim; and 3) is not
obtainable from any alternative source." Id.
210. 633 F.2d 346 (3d Cir. 1980), cert. denied sub nom. Schaffer v. United States, 449
U.S. 1113 (1981).
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extended a reporter's qualified privilege to criminal proceedings.2 1' The Third
Circuit claimed to be adopting Justice Powell's concurrence that a proper
balance should be struck "'between freedom of the press and the obligation of
all citizens to give relevant testimony with respect to criminal conduct."'212
The Third Circuit, however, then adopted the three-step balancing test that
Justice Powell specifically rejected.' 13 Relying on an earlier Third Circuit case
involving civil, not criminal, contempt, the Third Circuit held that the movant
must demonstrate that: 1) efforts have been made to obtain the confidential
information from a non-reporter source; 2) access to the information is only
through the reporter; and 3) the information is crucial to the claim.2" 4
It is unclear what effect this may have on a case brought in the Virgin
Islands because it has no shield law. It would clearly conflict with criminal
cases brought in Delaware, New Jersey, and Pennsylvania.
Delaware provides that a reporter has a privilege from testifying as to both
the source and content of information if the reporter states under oath that
disclosure would violate an express or implied promise of confidentiality or if
disclosure would substantially hinder the reporter in maintaining existing
sources or developing new ones.215 Upon a judicial finding "that the public
interest in the reporter's testimony outweighs the public interest in keeping the
information confidential," the information, but not the source, shall be
211. Id. at 357. The Third Circuit created a qualified privilege in criminal cases based
on earlier Third Circuit decisions that created such a privilege in civil cases. See United
States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980); Riley v. City of Chester, 612 F.2d
708, 715-16 (3d Cir. 1979). What the court in Criden failed to grasp in relying on the earlier
cases, however, was that both Cuthbertson and Riley were civil cases and that most courts in
this country have adopted a less drastic standard in civil cases and have generally applied
some form of Justice Stewart's balancing test in such cases. See id. at 714-16. Like the Liddy
case from the D.C. Circuit, Criden involved a Sixth Amendment claim of the right to
cross-examine the government's witnesses. Unlike Liddy, it appears from the language of the
Criden opinion that the Third Circuit simply disagreed with Justice White's analysis and
utilized its earlier civil cases to basically overturn the Supreme Court ruling. See Criden, 633
F.2d at 355-57 (espousing the First Amendment rights of newsgatherers that were addressed
and rejected by the Branzburg Court).
212. Criden, 633 F.2d at 357 (quoting Branzburg v. Hayes, 408 U.S. 665, 710 (Powell,
J., concurring)). In an effort to separate Justice Powell from the majority in Branzburg, the
Criden concurring opinion referred to the "plurality" opinion of the Court. Id. at 360 (Rambo,
D. J., sitting by designation, concurring).
213. Id. at 358-59.
214. Id.
215. DEL. CODE ANN. tit. 10, § 4322 (1999); DEL. R. EVID. 513 (1991) (providing that
"A reporter may not decline to testify except as provided by statute," which is provided in
section 4323).
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THE RULE 501 BLUES
disclosed unless revealing the information216will substantially increase the
likelihood of revealing the source's identity.
New Jersey provides for an absolute privilege, except when the claim
conflicts with a defendant's Fifth or Sixth Amendment right.217 Pennsylvania
provides an absolute privilege for the source2" 8 and possibly a similar result for
the underlying information.219
E. The Fourth Circuit-FourStates with at Least a Qualified Privilege
In a hybrid decision, the Fourth Circuit has rejected, albeit reluctantly,
Justice Stewart's three-step test and opted to follow Justice Powell's
"plurality," which it interprets as balancing possible constitutional
infringement and the government's need for documents on a case-by-case
basis.22° While the Fourth Circuit has rejected the qualified privilege concept,
its choice of following Justice Powell's concurrence has created concern that
the use of "proper balancing" may, in some circumstances, result in the
application of the three-step test rejected by the Branzburg majority.22 1
There would probably be no conflict in a state grand jury proceeding
brought in West Virginia whose state courts adhere to the Branzburg ruling
that no privilege exists in grand jury proceedings.222 While Virginia does not
have a statutory privilege,223 case law indicates that there would be no conflict
216. DEL. CODE ANN. tit. 10, § 4323(a) (1999). The only method by which the source
can be discovered in Delaware is if the requesting party shows by a preponderance of the
evidence that the reporter's sworn statement was untruthful. DEL. CODE ANN. tit. 10, §
4323(b) (1999).
217. N.J. STAT. ANN. 2A.84A-21a-21.5 (West 1994); N.J. R. EVID. 508 (West 1994).
218. 42 PA. CONS. STAT. ANN. § 5942(a) (West 2000).
219. In re Taylor, 193 A.2d 181, 184-85 (Pa. 1963).
220. In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d 229, 232-34 (4th Cir.
1992) (opining that Justice Powell's concurrence better describes the majority opinion). Not
all courts have so read Justice Powell's concurrence as requiring a case-by-case balancing
test. In re Grand Jury Subpoena Am. Broad. Co., Inc., 947 F. Supp. 1314, 1318 (E.D. Ark.
1996).
221. See, e.g., United States v. King, 194 F.R.D. 569, 582-84 (E.D. Va. 2000)
(acknowledging the Fourth Circuit's rejection of the qualified privilege, but expressing
concern that the Fourth Circuit's approach has allowed other courts in the circuit to adopt the
qualified privilege balancing test in criminal cases).
222. State ex rel. Charleston Mail Ass'n v. Ranson, 488 S.E.2d 5, 10, 12 (W. Va. 1997)
(holding that a defendant must show with particularity that the information is highly material
and relevant to the defense; necessary or critical to the defense; and not obtainable from other
available sources). A qualified privilege exists for non-confidential information in a criminal
proceeding. Id. at 12.
223. Philip Morris Co., Inc. v. Am. Broad. Co., Inc., LX-816-3, 1995 WL 301428, at
*3 (Va. Cir. Ct. Jan. 26, 1995).
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between federal and state grand jury proceedings.224 A conflict may arise in
criminal trial proceedings, however, because the Virginia courts interpret
Branzburg as creating a qualified privilege as to both the source and the
underlying information in criminal trials.225
Conflict arises thereafter in every other state jurisdiction in the Fourth
Circuit. Maryland provides for an absolute privilege as to the source and a
qualified privilege as to the underlying information.226 North Carolina created
a qualified privilege for confidential and non-confidential information in
criminal cases.227 South Carolina law provides a qualified privilege as to both
the source and the underlying information.228
F. The Fifth Circuit-Conflictin Louisiana
The Fifth Circuit, while reading Branzburg as a plurality decision,
interprets both Justice White's and Justice Powell's opinions as rejecting any
such privilege, except when the grand jury is acting in bad faith.22 9 The Fifth
Circuit extended Branzburg to criminal trials, as well.23° The holding is
224. Brown v. Commonwealth, 204 S.E.2d 429, 431 (Va. 1974).
225. Id. (stating that the privilege is defeated if information is relevant and is essential
to insuring a fair trial under the Sixth Amendment).
226. MD. CODE ANN., CTS. &JUD. PROC. § 9-112(c) (2002). Maryland has made it clear
that the rule applies in both criminal and civil proceedings. See Tofani v. State, 465 A.2d
413, 417 (Md. 1983) (involving a grand jury summons); Bilney v. Evening Star Newspaper
Co., 406 A.2d 652,658 (Md. Ct. Spec. App. 1979). The qualified privilege can be overcome
by clear and convincing evidence from the requesting party that "[1)] the.. information is
relevant to a significant legal issue...; [2)] the news or information could not, with due
diligence, be obtained by any alternative means; and [3)] there is an overriding public interest
in the disclosure." MD. CODE ANN., CTS. & JUD. PROC. § 9-112(d) (2002).
227. N.C. GEN. STAT. § 8-53.11 (b) (2001). The privilege is unavailable to a journalist
who witnessed or heard the conduct or viewed it on a recording of the conduct. N.C. GEN.
STAT. at § 8-53.11 (d) (2001). The privilege can be overcome if the requesting party shows
by the greater weight of the evidence that the material is relevant, cannot otherwise be
obtained, and is essential to a claim or defense. N.C. GEN. STAT. at § 8-53.11 (c) (2001).
228. S.C. CODE ANN. § 19-11-100 (Law. Co-op. Supp. 2002) (prohibiting disclosure
unless the movant demonstrates by clear and convincing evidence that: 1) the material is
relevant; 2) it cannot be obtained by other means; and 3) the information is necessary to a
"proper preparation or presentation of the case"). Like Georgia, the statute does not refer to
the identity of a source, but it appears that such is included within the ambit of the statute.
See In re Decker, 471 S.E.2d 462, 463 (S.C. 1995).
229. United States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998).
230. Id. at 969. The issue recently received national attention when a free-lance writer
was subpoenaed before a Houston federal grand jury investigating a high-profile murder. See
Held in Jailfor Contempt, Novice Writer Loses Appeal, N.Y TIMES, Aug. 19, 2001, at 19;
Milloy, supra note 97, at A7.
2002/03]
THE RULE 501 BLUES
limited by the fact that the case involved
non-confidential information, which
23
circumscribed the opinion accordingly. '
This would likely create no conflict in Mississippi, which has no shield
law, nor in Texas which seems to adhere to Branzburg 2 In Louisiana,
however, a conflict would arise because the state shield law provides a
qualified privilege for both the source and the underlying information in both
grand jury and criminal proceedings.2 33
G The Sixth Circuit-ConflictsThroughout
The Sixth Circuit also rejects a reporter's privilege, except in the face of
a bad faith investigation.2 34 All four of the states within the235
Sixth Circuit
236
provide substantially greater protection to reporters. Kentucky and Ohio
231. Smith, 135 F.3d at 972. Because the Fifth Circuit's decision in Smith was limited
to non-confidential information, it remains unclear whether the Fifth Circuit would require
a balancing test in cases involving confidential information. While the Smith decision seems
to adamantly reject such a reading from Branzburg, a previous Fifth Circuit civil libel case
required such a balancing test, although that case carved out an exception to Branzburg
because of the nature of libel cases. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725
(5th Cir. 1980). See also Lenhart v. Thomas, 944 F. Supp. 525, 529 (S.D. Tex. 1996) (relying
on the three-step balancing test in Transamerican Pressto require such a balancing test in a
criminal case involving a state grand jury subpoena seeking confidential information).
232. Texas has not expressed an opinion as to whether such privilege exists. Dolcefino
v. Ray, 902 S.W.2d 163, 164 (Tex. App. 1995). The only Texas cases discussing this issue
have both involved non-confidential sources, which Texas courts have found do not implicate
a reporter's privilege. See In re Union Pac. R.R. Co., 6 S.W.3d 310, 312 & n.4 (Tex. App.
1999) (relying on case law from other jurisdictions that recognizes a qualified privilege in
civil cases only to protect confidential sources); Dolcefino, 902 S.W.2d at 165. Nonetheless,
Texas requires a showing of materiality and favorability to the defendant before a reporter
must testifyin a criminal proceeding. Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim.
App. 1998).
233. LA. REV. STAT. ANN. § 45:1459 (West 1999). The enactment of this portion of the
statute in 1989 overruled decisional law that followed the Branzburg majority ruling, albeit
it changed the burden of proof, requiring the state to show that the material was necessary to
the public interest and that the subpoena was issued in good faith, In re Grand Jury
Proceedings, 520 So. 2d 372, 376 (La. 1988). The privilege will be denied unless the state
attorney general or district attorney has certified that the information: "[1)] Is highly material
and relevant; [2)] Bears directly on the guilt or innocence of the accused; and [3)] Is not
obtainable from any alternative source." LA. REV. STAT. ANN. § 45:1459 (West 1999).
234. In re Grand Jury Proceedings Storer Communications, Inc., 810 F.2d 580,586 (6th
Cir. 1987).
235. KY. REV. STAT. ANN. § 421.100 (Michie 1992). An exception to this statute exists
if the reporter observes the person committing the crime. Branzburg v. Pound, 461 S.W.2d
345, 347-48 (Ky. 1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).
236. OHIo REV. CODE ANN. §§ 2739.04, 2739.12 (Anderson 2000); State v. Geis, 441
N.E.2d 803, 808 (Ohio Ct. App. 1981); State v. Ventura, 720 N.E.2d 1024, 1027 (Ohio Com.
P1. 1999).
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provide an absolute privilege for the source and a qualified privilege for the
underlying information. Michigan provides for absolute media protection as to
both the source and underlying information.237 Tennessee also requires a
238
qualified privilege as to both the source and information.
H. The Seventh Circuit-Conflicts Throughout All Three States
In a case not dealing with the reporter's privilege, the Seventh Circuit has
cited to Branzburg in rejecting a claim of state document privilege asserted by
staff members of an Illinois state official.239 Based on this decision, it should
be assumed that the Seventh Circuit would follow Branzburg under the
appropriate fact situation.
Under such a rule, news reporters in federal court in the Seventh Circuit
would be deprived of the protection that would be afforded them in any of the
state courts in this Circuit. Illinois provides a qualified privilege protecting the
identity of sources.24 Indiana provides an absolute privilege for sources and
237. MICH. COMP. LAWS ANN. § 767.5a(1) (West 2000). The statute provides an
exception if the inquiry pertains to a crime punishable by life imprisonment and if the
information "is essential to the purpose of the proceeding and.. .other available sources have
been exhausted." Id. In a strict construction of the statute as it existed prior to 1986,
Michigan held that the statute did not include radio and television reporters because the
statute referred to "reporters for newspapers or other publications." In re Contempt of Stone,
397 N.W.2d 244, 246 (Mich. Ct. App. 1986). The statute was amended in 1986 to include
broadcast reporters as well. MICH. COMP. LAWS ANN. § 767.5a(l) (West 2000).
238. TENN. CODE ANN. § 24-1-208 (2000). The privilege can be overcome by clear and
convincing evidence that: 1) the information is relevant; 2) it cannot be obtained from other
sources; and 3) a compelling interest exists for requiring disclosure. Id.
239. In re Special April 1977 Grand Jury, 581 F.2d 589, 592 (7th Cir, 1978).
240. 735 ILL. COMP. STAT. ANN. 5/8-901,-907 (West 1992). It appears that the statute
provides no privilege for the information obtained from the source. People v. Pawlaczyk, 724
N.E.2d 901, 908 (11. 2000); In re Arya, 589 N.E.2d 832, 835 (III. App. Ct. 1992). The
privilege will be denied if the movant shows that the information was not required to be kept
secret by law, all other sources had been exhausted, and disclosure was essential to the
protection of the public interest. 735 ILL. COMP. STAT. ANN. 5/8-907 (West 1992). Illinois
cautions that seeking divestiture of the privilege should be the state's last resort. In re Arya,
589 N.E.2d at 841. Nonetheless, it clearly applies to grand jury proceedings. Pawlaczyk, 724
N.E.2d at 913.
2002/03]
THE RULE 501 BLUES
a qualified privilege protecting the underlying information. 4
Finally,
Wisconsin provides for a qualified privilege in grand jury proceedings.242
I. The Eighth Circuit-A Predominance of Conflicting Results
The Eighth Circuit follows the Branzburg decision. 43 Out. of the seven
states in the Eighth Circuit, only two would produce identical results in federal
and state court. One of these two states, South Dakota, does not have a shield
law and has not specifically dealt with the issue in a criminal proceeding. 44
The other state, Missouri, also has no shield law, but its courts follow the
Branzburg decision. 45 In the five other states in the Eighth Circuit, reporters
in federal criminal cases will lose the privileges they would have in their
respective state courts.
A perfect example of this disparity occurred in Arkansas. Arkansas
provides a qualified privilege for reporters to protect their sources, which can
be overcome only if the article "was written in bad faith, with malice, and not
in the interest of the public welfare., 246 In a federal grand jury case brought
in the Eastern District of Arkansas, the district court followed Branzburg and
rejected the media's claim of privilege. 247 The media's unsuccessful claim was
241. IND. CODE ANN. § 34-46-4-2 (Michie 1998); Jamerson v. Anderson Newspapers,
Inc., 469 N.E.2d 1243, 1246 (Ind. Ct. App. 1984); Shindler v. State, 335 N.E.2d 638, 646
(Ind. Ct. App. 1975). In Jamerson, the Indiana Court of Appeals also noted that the
legislature's 1973 amendment to the statute providing increased protection to journalists,
rather than acting in defiance of Branzburg,"simply concluded that the journalist's privilege
should prevail." Jamerson, 469 N.E. 2d at 1247.
242. State v. Knops, 183 N.W.2d 93, 99 (Wis. 1971) (holding that a court must weigh
the interest of the free flow of information against the interest of fair and effective
administration of the judicial system). The privilege can be overcome if the person invoking
the privilege makes an initial showing that the privilege should apply to them, after which the
requesting party must show that there is reasonable probability that the confidential
information is competent, relevant, material, and favorable to the requesting party. Finally,
the requesting party must show by a preponderance of the evidence that, after reasonable
investigation, there are no other reasonable and less intrusive sources from which the
information can be obtained. State v. Cir. Ct., Branch 1,Brown County, 335 N.W.2d 367,
371-73 (Wis. 1983) (requiring an in camera inspection).
243. In re Grand Jury Subpoena Am. Broad. Co., Inc., 947 F. Supp. 1314, 1319-20
(E.D. Ark. 1996).
244. See Hopewell v. Midcontinent Broad. Corp., 538 N.W.2d 780, 781-82 n.6 (S.D.
1995) (applying a qualified privilege in civil cases only and stating that the privilege may not
exist in a criminal case).
245. CBS, Inc. v. Campbell, 645 S.W.2d 30, 32-33 (Mo. Ct. App. 1982) (holding that
there are no claims of confidential sources or information in grand jury proceedings and
noting that the news media would have greater protection in civil cases).
246. ARK. CODE ANN. § 16-85-510 (Michie 1987).
247. In re Grand Jury Subpoena Am. Broad. Co., 947 F. Supp. at 1320.
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[Vol. 38:3
grounded, in part, on Arkansas' shield law. The district court, in rejecting the
appellant's reliance upon the Arkansas shield law, held that state law privileges
do not apply to a federal grand jury subpoena.2 48 Thus, the media litigant, who
in state court may have been successful in protecting its source, was forced to
disclose it in Arkansas federal court.
Both Iowa249 and Minnesota25 ° provide a qualified privilege to journalists
as to both the source and the information. Nebraska provides an absolute
privilege from disclosing the identity of a reporter's source or any unpublished
or nonbroadcast information.'
Finally, North Dakota protects the source's
identity and the underlying information unless non-disclosure would create a
miscarriage of justice.252
248. Id. at 1321.
249. Bell v. City of Des Moines, 412 N.W.2d 585, 587 (Iowa 1987) (quoting Lamberto
v. Brown, 326 N.W. 2d 305, 309 (Iowa 1982)) (allowing disclosure, if the requesting party
shows that: 1) the information is reasonably necessary and 2) the information is not readily
obtainable elsewhere). The Iowa Supreme Court recognized that the scale generally tilted
toward disclosure when the case involved a criminal charge or a grand jury proceeding. Id.
250. MINN. STAT. ANN. §§ 595.023, 595.024 (West 2000). Section 595.023 was
amended in 1998, but, under both versions, the protection provided therein could be overcome
by section 595.024, which allows disclosure of unpublished information under the Stewart
dissent's three-prong test. Prior to 1998, subject to section 595.024, journalists could not be
compelled to identify a source or any unpublished information "'which would tend to identify
the [source].' State v. Turner, 550 N.W.2d 622, 629 (Minn. 1996) (quoting MINN. STAT.
ANN. § 595.023 (West 1994)). This wording may have left the impression that no balancing
test was necessary if the unpublished information would not identify the source. In 1998,
section 595.023 was amended to prohibit disclosure of both the source and unpublished
information "whether or not it would tend to identify the [source]," but still provided an
exception in section 595.024 with a slight change in the wording of the test. It appears that
this language change was meant to require that the three-prong test be applied to both the
source and the unpublished information. But see id. at 628 (holding that the statute does not
apply to requiring a reporter who witnesses the crime from disclosing such information); State
v. Knutson, 523 N.W.2d 909, 912 (Minn. Ct. App. 1994) (requiring a reporter who witnessed
a crime to testify when the testimony would not identify a source).
251. NEB. REV. STAT. § 20-146 (1997). While the statute prohibits disclosure in both
state and federal proceedings, the statute is clearly not binding in federal non-diversity cases.
252. N.D. CENT. CODE § 31-01-06.2 (1996). While not specifically defining the term
"miscarriage ofjustice," the North Dakota Supreme Court has held that the availability of the
evidence from other sources and whether there is a compelling need for such evidence are
factors that should be considered by a court in determining whether the non-disclosure of the
evidence would result in a miscarriage of justice. Grand Forks Herald v. Dist. Ct., 322
N.W.2d 850, 855 (N.D. 1982).
2002/03]
THE RULE 501 BLUES
J. The Ninth Circuit-Almost a Complete Loss of Privilege
The Ninth Circuit adheres to Branzburg and has, therefore, rejected a
reporter's privilege in grand jury proceedings 25 as well as in criminal trial
proceedings.254 Of the state courts in the Ninth Circuit, a reporter would fare
the same in Hawaii, which follows Branzburg,255 as well as in Guam and the
Northern Mariana Islands, neither of which has a shield law. The remaining
eight states in the Ninth Circuit have different forms of shield laws, all of
which would be neutralized if criminal cases were pursued in federal court.
Montana, 256 Nevada, 257 and Oregon 258 all provide absolute privileges in
criminal cases, allowing reporters to protect both the identity of their sources
and the underlying information. Arizona provides an absolute privilege for the
source and a qualified privilege for the underlying information. 9 Alaska, 6 °
Idaho,26 ' and Washington262 all provide for a qualified privilege of various
253. In re Lewis, 517 F.2d 236, 237-38 (9th Cir. 1975).
254. Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir. 1975) (noting that Branzburg should
be applied to civil proceedings as well).
255. Jenkins v. Liberty Newspapers Ltd. P'ship, 971 P.2d 1089, 1097 (Haw. 1999).
256. MONT. CODE ANN. § 26-1-902 (2001). The statute further protects a reporter from
being held in contempt for refusing disclosure. MONT. CODE ANN. 26-1-902(2) (2001). An
in camera inspection may be required by the trial court. State ex rel. Adams v. District Ct.,
546 P.2d 988, 989-90 (Mont. 1976).
257. NEV. REV. STAT. ANN. 49.275 (Michie 1996); see also Diaz v. Eighth Judicial
District Ct., 993 P.2d 50, 59 (Nev. 2000) (holding that the waiver statute is inapplicable to
the shield law even when the source and partial information have been disclosed).
258. OR. REV. STAT. § 44.520 (1999). A constitutional exception has been created when
a criminal defendant needs the source or the information is favorable or material to the
defense. State v. Pelham, 901 P.2d 972, 977-78 (Or. 1995).
259. ARiz. REV. STAT. ANN. § 12-2237 (West 1994). While the statute does not limit
the protection to confidential sources, case law has created such a limitation. Matera v.
Superior Ct., 825 P.2d 971, 974 (Ariz. 1992) (holding privilege is appropriate only where
confidentiality of the source is present). The underlying information may still be protected if
disclosure would reveal the source's identity or impede the gathering of information. Id. at
975.
260. ALASKA STAT. § 09.25.300, .310, .390 (Michie 2000) (protecting the source unless
the court finds that withholding the testimony will: 1) result in a miscarriage ofjustice or the
denial of a fair trial to those who challenge the privilege or 2) be contrary to the public
interest). No published state cases were found that interpret the statute.
261. In re Contempt of Wright, 700 P.2d 40, 43, 44-45 (Idaho 1985) (holding that
Branzburg is limited to its facts and that the elements of Justice Stewart's balancing test are
"the proper ones to be used"). The dissent in the Wright case correctly takes issue with its
majority's interpretation that Branzburgcreated a qualified privilege or a balancing test. Id.
at 50, 52 (Shepard, J., dissenting).
262. State v. Rinaldo, 102 Wash. 749, 754-55, 689 P.2d 392, 395-96 (1984) (extending
the qualified privilege in civil cases to criminal cases, which can be overcome if the
prosecution shows that: 1) the claim is meritorious; 2) the information is necessary and
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forms in both grand jury and criminal proceedings. California's statute
provides that a reporter cannot be found in contempt for refusing to disclose
a source or information in a grand jury or criminal proceeding.26 3 While
California does not protect a reporter from other judicial sanctions, it remains
unclear what other types of punishment might be visited on a recalcitrant
reporter in a criminal case.264
K. The Tenth Circuit-Halfthe Circuit Loses its Privilege
In a civil case, the Tenth Circuit stated that Branzburg applied only in
criminal cases. 265 Two states in the Tenth Circuit, Utah and Wyoming, have
no shield law, while Kansas follows Branzburg and Justice Powell's balancing
test.266 Thus, there would be virtually no disparity in results if a reporter was
brought before a federal or state grand jury seeking a source's identity in these
three states.
This would not be the case in the other three states in the Tenth Circuit.
Oklahoma provides an absolute privilege to protect the identity of the source
and a qualified privilege as to the information.2 67 Colorado 268 and New
critical to the cause of action or the defense asserted; 3) a reasonable effort has been made to
acquire the information by other means; and 4) the reporter's interest in nondisclosure is
supported by a need to preserve confidentiality).
263. CAL. EvID. CODE § 1070 (West 1995). First introduced in 1935, the shield law was
incorporated into California's constitution in 1980. See Rancho Publications v. Superior Ct.,
81 Cal. Rptr. 2d 274, 276 (Cal. Ct. App. 1999).
264. Clearly, if the journalist or a media employer was a party in a civil suit, the trial
courts could strike defenses and impose other sanctions that could adversely affect civil
litigation. See KSDO v. Superior Ct., 186 Cal. Rptr. 211,217 (Cal. Ct. App. 1982). However,
when a reporter acts solely as a witness before the grand jury or a witness in a criminal trial,
it is difficult to discern what other sanctioning options remain available to a trial court outside
of contempt.
265. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436 (10th Cir. 1977).
266. State v. Sandstrom, 581 P.2d 812, 814-15 (Kan. 1978) (holding that a reporter has
a limited privilege of confidentiality). Kansas has adopted the Branzburg reqpirement,
clarified by Justice Powell, that a court must compare the freedom of the press with the
obligation of all citizens to give relevant testimony. Id. at 815.
267. OKLA. STAT. ANN. tit. 12, § 2506(B) (West 1993). The qualified privilege is
waived if the requesting party establishes by clear and convincing evidence that such
information is relevant to a significant issue in the action and could not with due diligence
be obtained by alternate means. OKLA. STAT. ANN. tit. 12, § 2506(B)(2) (West 1993).
268. COLO. REV. STAT. ANN. § 24-72.5-103(1) (West 2001). The privilege does not
apply to news that has been published or broadcast at a press conference or through the mass
media nor does it apply to news information based on a reporter's personal observations of
felonies or any crime, if the information is not available elsewhere. Id. The privilege can be
overridden if the governmental entity proves by a preponderance of the evidence that: 1) the
information is directly relevant to a substantial issue in the proceeding; 2) the information
2002/03]
THE RULE 501 BLUES
Mexico 269 both provide for a qualified privilege as to the source and the
information.
L. The Eleventh Circuit-TotalConflict
The Eleventh Circuit has indicated a willingness to follow Branzburg, if
the appropriate fact situation was presented. 27" Therefore, reporters located in
any of the three states in the Eleventh Circuit would lose the protection
afforded by their respective statutory shield laws if they were subpoenaed in
a federal criminal investigation or prosecution.
Alabama provides absolute protection to journalists from disclosing their
sources. 21 Florida27 2 and Georgia 273 both provide journalists with a qualified
privilege protecting a source's identity and information.274
cannot be obtained by any other reasonable means; and 3) a strong interest of the
governmental entity outweighs the First Amendment interests or those of the general public
in receiving the information. COLO. REv. STAT. ANN. § 24-72.5-104 (West 2001).
269. N.M. STAT. ANN. § 38-6-7 (Michie 1998). The privilege can be overcome if the
requesting party shows by a preponderance of the evidence that: 1) the information or source
is material and relevant; 2) all alternative means of discovering the information or source have
been reasonably exhausted; 3) the information or source is crucial to the case; and 4) the
disclosure outweighs the public interest in protecting the source or information. N.M. R. EvID.
§ 11-514(c) (Michie 2000). As originally enacted in 1970, section 20-1-12.1 of the New
Mexico Statutes Annotated provided much stronger protection for reporters than the current
Rule of Evidence. The original statute was ruled unconstitutional by the New Mexico
Supreme Court because it was deemed to be a legislative attempt to create a rule of evidence,
which could only be done by the state supreme court. Ammerman v. Hubbard Broad., 551
P.2d 1354, 1359 (N.M. 1976). Until the Rule of Evidence was ultimately adopted by the
Supreme Court in 1982, New Mexico followed Branzburg, holding that a reporter had no
privilege in grand jury proceedings. Ammerman, 551 P.2d at 1359; see also Faber, supra note
144, at 440.
270. Morgan v. Roberts, 702 F.2d 945, 946-47 (11 th Cir. 1983) (failing to reach the
issue in a civil proceeding because there was no longer a case or controversy).
271. ALA. CODE § 12-21-142 (1995).
272. FLA. STAT. ANN. § 90-5015(2) (West 1999).
273. GA. CODE ANN. § 24-9-30 (Harrison 1994). While the statute refers only to
information and not a source's identity, Georgia case law includes a source's identity within
the ambit of the statute. See In re Paul, 513 S.E.2d 219, 223-24 (Ga. 1999).
274. Both Florida and Georgia provide that the privilege can be overcome if the movant
can show that: 1) the information is relevant; 2) it cannot be obtained from other sources; and
3) a compelling interest exists for requiring disclosure or the information is necessary to the
proper preparation or presentation of the movant's case. FLA. STAT. ANN. § 90-5015(2) (West
1999); GA. CODE ANN. §24-9-30 (Harrison 1994).
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XI. THE FINAL ANALYSIS OF A REPORTER'S PRIVILEGE IN FEDERAL
CRIMINAL PROCEEDINGS
A. The CurrentRule 501 Will Never Encompass a Reporter's Privilege
When Branzburgwas decided, Rule 501 did not yet exist and the Supreme
Court has not subsequently addressed whether Rule 501 might countenance a
journalist's privilege.275 Based upon Branzburg, however, there can be no
doubt that Rule 501, as it is currently written, will never acknowledge a federal
reporter's privilege. Supreme Court precedent on creating, modifying, or
rejecting an evidentiary privilege under Rule 501 leads to no other conclusion.
Clearly, if a new privilege is to be given judicial acceptance under Rule 501,
that decision should be reserved for the Supreme Court to prevent the disparity
that can exist among decisions from the lower federal courts.276
Despite Congress' decision to omit a specific list of the then-recognized
common law privileges from Rule 501,277 the Supreme Court has readily
275. The Supreme Court could have re-examined the issue to correct the Third Circuit's
misinterpretation of Branzburg, which endorsed a qualified privilege for reporters in grand
jury and criminal proceedings. See United States v. Criden, 633 F.2d 346 (3rd Cir. 1981),
cert. denied sub nom. Schaffer v. United States, 449 U.S. 1113 (1981). When there has been
a split among the circuits regarding interpretations of other privileges under Rule 501, the
Court has resolved the split. See Jaffee v. Redmond, 518 U.S. 1, 7-8 (1996) (approving
psychotherapist-client privilege); University of Pennsylvania v. EEOC, 493 U.S. 182, 188
(1990) (rejecting peer review materials); United States v. Gillock, 445 U.S. 360, 361-62
(1980) (rejecting state legislative privilege in federal proceedings). This absence of action by
the Court could be read in a number of ways. First, the Court may have changed its views,
especially in light of the absence from today's Court of all but one of the Justices in 1972, that
being Chief Justice Rehnquist. Secondly, the Court may believe that Branzburg allowed the
various circuits to create their own federal common law interpretation of the case. Third, the
Court, which has clearly changed its views toward the concept of judicial activism that may
have been more prevalent in the 1970s, could believe that it should not revisit the matter,
instead leaving that decision to Congress. Once Congress stepped into the field and was
unable to enact a privilege, the Supreme Court probably believed that the issue should remain
in the legislative branch. See generally University of Pennsylvania,493 U.S. at 189 (1990).
While the third option may be the most legally persuasive, all three may have played some
part in the Court's inaction. Interestingly, some journalists and First Amendment lawyers
would probably prefer the Court not to reconsider the matter because they fear it would
further narrow the First Amendment rights of journalists. See Milloy, supra note 40, at A8.
276. See Rubin v. United States, 525 U.S. 990, 990 (1998) (Ginsburg, J., dissenting
from denial of certiorari) (stating that the Supreme Court and not the circuits should decide
the issue of privilege); id. at 995 (Breyer, J., dissenting from denial of certiorari) (stating that
only the Supreme Court can provide a definitive answer as to the existence of a privilege).
277. The nine recognized
federal privileges were attorney-client,
psychotherapist-patient, husband-wife, clergy-penitent, political vote, trade secrets, secrets
of state and other official information, required reports, and the identity of a police informer.
FED. R. EvID. 501 (Advisory Committee Notes).
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THE RULE 501 BLUES
acknowledged their continuing existence. 278 The mere enactment of Rule 501
did not in and of itself create any new privileges. 27 9 At the same time, Rule 501
did not freeze the law so that no new privileges could be created in federal
court. 28" Rather, it provided the courts with greater flexibility in developing
rules of privilege on a case-by-case basis.281
When the Court evaluates a new claim of privilege under Rule 501, it must
first and foremost acknowledge the general duty that every person should
provide testimony. 282 The Court has held that a new privilege can only be
adopted if it promotes a sufficiently important interest that outweighs the need
for probative evidence.283
However, attempts at creating new privileges under Rule 501 before the
Supreme Court have been fruitless. For example, in a case seeking to create a
278. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (noting that the
attorney-client privilege is the oldest recognized privilege for confidential communications);
Jaffee, 518 U.S. at 11 (discussing the attorney-client, spousal and psychotherapist-patient
privileges); Trammel v. United States, 445 U.S. 40,51 (1980) (rejecting the claimed privilege
against adverse spousal testimony and holding that it sweeps more broadly than the
well-accepted privileges of attorney-client, clergy-penitent, and doctor-patient).
279. FED. R. EvID. 501 (Advisory Committee Notes) (stating that the purpose of Rule
501 was to leave the law of privileges in its present state in 1975 and to allow the courts to
develop further privileges under a uniform standard applicable in both civil and criminal
cases).
280. Trammel, 445 U.S. at 47; In re Sealed Case, 148 F.3d 1073, 1075 (D.C. Cir.
1998), cert. denied sub nom. Branscum v. United States, 519 U.S. 980 (1998), cert. denied
sub nom. Hill v. United States, 519 U.S. 981 (1998).
281. Trammel, 445 U.S. at 47 (1980). By the same token, the Court has held that Rule
501 does not require that a privilege, once established, should endure for all time.
282. Jaffee, 518 U.S. at 9 (noting that a "fundamental maxim" for over three centuries
has been the right to every man's evidence).
283. Jaffee, 518 U.S. at 9-10. Professor Wigmore also created a continuing obstacle for
the courts to countenance ajournalist' s privilege because it could not meet the four-prong test
described in his treatise on evidence. See Branzburg v. Hayes, 408 U.S. 665, 697 n.29 (1972).
According to Professor Wigmore, a communication privilege could not be established unless
the following criteria were satisfied:
(1) The communications must originate in a confidence that they will not be
disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be
sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct
disposal of litigation.
WIGMORE,
supra note 5, § 2285.
While the journalist's privilege could usually qualify under the first criteria, the last three
criteria are more difficult for a court to justify. See In re Grand Jury Proceedings Storer
Communications, Inc., 810 F.2d 580, 584 (6th Cir. 1987).
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[Vol. 38:3
federal immunity privilege for state legislators, Chief Justice Burger noted that
the absence of a privilege from the list of nine stated in the Advisory
Committee's Notes suggested that "the claimed privilege was not thought to be
either indelibly ensconced in our common law or an imperative of
'
federalism."284
In another case examining whether Rule 501 should countenance the
privilege against adverse spousal testimony, the Court noted that testimonial
privileges are strictly construed and accepted only to the very limited extent
that permitting a refusal to testify has a "public good transcending the normally
285
predominant principle of utilizing all rational means for ascertaining truth.
Just as Branzburg stressed the need for the media to prove its right to a
reporter's privilege, 86 when a proposed privilege is designed to protect
purported constitutional rights, the Supreme Court demands that the proponent
present a compelling empirical case for the necessity of the privilege. 87
When the Supreme Court chooses not to create a new privilege, as in
Branzburg, the Court will thereafter defer to Congress' decision as to whether
to implement legislation creating a privilege. The case of University of
Pennsylvania v. EEOC288 is instructive because Justice Blackmun, writing for
a unanimous Court, found it comparable to Branzburg. In that case, the
university sought to create a new privilege to protect its peer review materials
in a racial and sexual discrimination lawsuit arising out of a tenure decision.2 89
In a direct reference to Branzburg, the Court said that it was "reluctant to
recognize a [new] privilege in an area where it appears Congress has
considered the relevant competing interests but has chosen not to provide the
privilege itself."29 The Court held that a privilege for peer review materials,
284. United States v. Gillock, 445 U.S. 360, 367-68 (1980).
285. Trammel, 445 U.S. at 50 (quoting Elkins v. United States, 364 U.S. 206, 234
(1960)); see also United States v. Nixon, 418 U.S. 683, 713 (1974) (involving a pre-Rule 501
case that rejected an absolute executive privilege).
286. Branzburg v. Hayes, 408 U.S. 665, 693-94 (1972).
287. See In re Sealed Case, 148 F.3d 1073, 1076 (D.C. Cir. 1998) (holding that the
need for a new privilege must be clear and convincing). But see Branzburg, 408 U.S. at
733-34 (Stewart, J., dissenting) (finding no precedent for requiring empirical data to justify
a First Amendment claim).
288. 493 U.S. 182 (1990).
289. Id. at 184.
290. Id. at 189. This may have been the most telling comment on why the Court never
revisited Branzburg. Clearly, Branzburg's decision was not based on the fact that Congress
had not acted prior to the Court's ruling. Branzburg's only reference to Congress pertained
to its authority to enact such a law. However, once Congress introduced numerous bills, none
of which passed, the Court had obviously decided that if Congress could not fashion a
privilege, the Court should not re-enter that arena. But cf. United States v. Weber Aircraft
Corp., 465 U.S. 792, 803 n.25 (1984) (holding that Congress' failure to codify a twenty yearold, judicially-created privilege did not limit the Court's power to recognize such a privilege
2002/03]
THE RULE 501 BLUES
like the claimed privilege in Branzburg, was a particularly legislative
function.2 9' Based on the Court's comments in University of Pennsylvania v.
EEOC, it is logical that the Court would not now recognize a journalist's
privilege under Rule 501, unless Congress chose to do so.
There is another reason that Rule 501 cannot support the creation of a
reporter's privilege. Rule 501 states that privileges can be developed based
upon "reason and experience. '' 212 The Supreme Court has indicated that the
existence of a consensus among states as to the recognition of a privilege is an
indication of such reason and experience.293 There is no consensus among the
states as to the recognition of the reporter's privilege. The lack of such a
consensus further indicates that Rule 501, as it is currently written, cannot
countenance the creation of a federal reporter's privilege in grand jury or
criminal proceedings.
B. A Congressionally-EnactedFederalPrivilege Would Not Resolve the
Conflict Among the States
Branzburgemphatically refused to create a journalist's privilege in grand
jury or criminal proceedings, barring a bad faith investigation. 294 This lack of
protection to journalists led to a fruitless effort by some members of Congress
to enact a federal reporter's privilege.295
Despite Congress' refusal to pass legislation, commentators have continued
to advocate that Congress should create a federal journalist's privilege.296
under Rule 501).
291. University of Pennsylvania, 493 U.S. at 189. But cf Weber Aircraft Corp., 465
U.S. at 803 n.25 (holding that Rule 501 was adopted because Congress wished to leave
questions of privilege to the courts rather than attempt to codify them).
292. FED. R. EVID. 501.
293. Jaffee v. Redmond, 518 U.S. 1, 13 (1996). Similarly, the Court has relied on the
existence of a downward trend among the states to reject the then-existing federal privilege
against adverse spousal testimony. Trammel v. United States, 445 U.S.40, 47-48 (1980)
(overturning the ruling in Hawkins v. United States, 358 U.S. 74 (1958)); see also In re
Sealed Case, 148 F.3d 1073, 1076 (D.C. Cir. 1998) (stating that the lack of precedent is not
crucial in evaluating a claimed privilege).
294. Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972).
295. See supra notes 149-160 and accompanying text.
296. See e.g., Browne, supra note 29, at 754. Mr. Browne suggests that the Supreme
Court should revisit the issue and adopt a journalistic privilege with a burden-shifting
analysis. Id. Under this theory, the prosecutor would have the initial burden of showing
substantial relevance, at which point the reporter would have to show, by clear and convincing
evidence, that the source was confidential and the reporter did not witness the criminal act.
Id. If the journalist satisfies this burden, then a rebuttable presumption would be created,
which could only be defeated if the prosecutor proved that not disclosing the source's identity
would result in imminent harm to society. Id.
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Writing shortly after Branzburg, the HarvardLaw Review's annual survey of
the 1971 Supreme Court term, without advocating any particular type of
privilege, noted that the enactment of a federal statute would be desirable in
that it would
provide explicit guidelines that might be missing in the Court's
97
decision.1
One commentator believed that Congress should enact a statute that would
create a national qualified privilege in both criminal and civil cases in order to
avoid potentially differing results from state to state.298 This national privilege
would apparently override all state statutes and apply a test similar to that
proposed by Justice Stewart in Branzburg.299
Other commentators have argued for a national law creating an absolute
privilege for reporters 300 akin to Justice Douglas' dissent in Caldwell.3"' In this
regard, one commentator has noted that the attempts by courts to find a
common law privilege have proved "almost universally futile."3" 2 This same
commentator found state statutes lacking because: 1) they differ in who is
included within the statute; 2)they have limited degrees of protection; 3) there
33
are varying waiver issues; and 4) courts have construed them differently.
Two commentators opined that the matter could only be resolved
legislatively because Branzburg's rejection of a First Amendment privilege
eliminated the possibility of a judicial resolution.30 4 These commentators
297. The Supreme Court 1971 Term, supra note 31, at 148.
298. Marcus, supra note 12, at 866. Mr. Marcus opined that Branzburg was a "strange"
decision and that Justice Powell created a good deal of confusion, resulting in conflicting
conclusions regarding the actual holding in Branzburg. Id. at 829. The author also correctly
noted that state statutes are not uniform in their treatment of the privilege. Id. at 860.
299. Id. at 828-29. The author's justification for a national privilege was based on his
observations that "few judges cling to the view that under no circumstances is there a
privilege" and that most courts and commentators agree that Branzburg does not apply to civil
actions. Id. at 841, 850-51.
300. See Brian M. Cullen, Note, Circumventing Branzburg: Absolute Protection for
Confidential News Sources, 18 SUFFOLK U. L. REV. 615, 635 (1984); Neubauer, supra note
79, at 187-88; Sanford V. Teplitzky & Kenneth A. Weiss, Comment, Newsmen's Privilege
Two Years After Branzburg v. Hayes: The First Amendment in Jeopardy, 49 TUL. L. REV. 417,
438 (1975); The Supreme Court 1971 Term, supra note 31, at 148. See also Sherwood, supra
note 33, at 1245 (arguing two years before Branzburg that a Supreme Court ruling was
needed on the issue and urging the adoption of an absolute privilege).
301. United States v. Caldwell, 408 U.S. 665, 712 (1972) (Douglas, J., dissenting).
302. Neubauer, supra note 79, at 165.
303. Id. at 167-69.
304. Teplitzky & Weiss, supra note 300, at 438 n. 162; see also Richard E. Anderson,
Comment, Branzburg v. Hayes: A Need for Statutory Protection of News Sources, 6 KY. L.J.
551, 559 (1973) ("Stripped of the possibility of constitutional protection by...Branzburg, the
newsman must now rely on Congress and the state legislatures to provide him with the
protection he needs to satisfactorily perform his role as the 'guardian of the public interest."')
(quoting from Thomas C. Desmond, Comment, The Newsman's Privilege Bill, 13 ALB. L.
2002/031
THE RULE 501 BLUES
recommended "as absolute a privilege as possible" with any exceptions being
narrowly and specifically drawn.3" 5 Another commentator, believing that the
concept of a qualified privilege is an "ineffective prophylactic measure, ,306
thought that an absolute privilege against disclosing confidential sources was
needed.3°7
However, an all-encompassing federal statutory reporter's privilege,
whether absolute or qualified, would be an illusory panacea. While it would
create a uniform federal privilege, it would not resolve the dilemma of litigants
receiving disparate treatment between state and federal courts in a respective
state. If Congress attempted to create a privilege that would be binding on the
states, it would then abolish the rights of individual states to create their own
rules in this area, as specifically authorized by Branzburg. The very fact that
so many states' shield laws differ from those of other states demonstrates that
a binding federally-enacted privilege, whether absolute or qualified, would
eviscerate the legislative or judicial mandates of numerous states.
C. Unlike the Reporter's Privilege, Other Federally-Recognized
Privileges Receive Similar Treatment in State Courts
Justice Stewart, in Branzburg, distinguished the reporter's privilege from
some other federally-recognized privileges. First, Justice Stewart noted that all
common law privileges were meant to protect the information subject to the
privilege 30 8 while the reporter's privilege intends the underlying information to
be made public. 3 9 Secondly, the identity of the parties is known in all the
common law privileges while the entire purpose of the reporter's privilege is
to hide the identity of one of the parties.31 0
The treatment accorded to the commonly-accepted privileges is relatively
consistent, whether such privileges are asserted in federal or state forums. As
discussed in this article, that is not the case with the reporter's privilege. In
1,8 (1949)).
305. Teplitzky & Weiss, supra note 300, at 438. While the authors preferred an
absolute privilege, they noted that possible exceptions could include national security or a
defendant's right to cross-examine witnesses. Id. at 437. These same commentators, obviously
disagreeing with the Branzburg opinion, argued that the privilege might lie with the
informant rather than the journalist or, in a larger sense, might lie with the general public,
which is the ultimate beneficiary of the free flow of information. Id. The authors, perhaps to
strengthen the power of an absolute privilege, failed to explain how the general public could
waive the privilege in a court proceeding.
306. Cullen, supra note 300, at 618.
307. Id. at 639; see also Anderson, supra note 304, at 558.
308. Branzburg v. Hayes, 408 U.S. 665, 726 n.2 (1972) (Stewart, J., dissenting).
309. Id.
310. See id.
REV.
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[Vol. 38:3
fact, the treatment accorded the reporter's privilege in federal court would be
different and usually more harmful to the reporter than if the same testimony
was sought in thirty-seven of the fifty states and the District of Columbia.
Clearly, this is not the same type of equitable treatment afforded to the other
evidentiary privileges by the federal courts. This uncertainty regarding the
ultimate result of a confidential communication gives reporters and their
sources very little predictability as to the efficacy of such confidences.31'
In the context of the attorney-client and psychotherapist-patient privileges,
the Supreme Court has discussed the need to have consistency between state
and federal application of the privileges. In Upjohn Company v. United States,
the Court examined the attorney-client parameters of the corporate "control
group" rule.3 2 The Court noted that the application of the attorney-client
privilege required the attorney and client to predict their confidentiality with
some degree of certainty. 313 In a passage that would seem to equally apply to
the reporter's privilege, the Court stated that "An uncertain privilege, or one
which purports to be certain but results in widely varying applications by the
courts, is little better than no privilege at all."3' 14
In another case involving the psychotherapist-patient privilege, it was noted
that "any state's promise of confidentiality would have little value if the patient
were aware that the privilege would not be honored in a federal court."3 5
Clearly, a state shield law has little value to a reporter or source if it will not
be honored in federal court.
The rationale behind applying federal rules and privileges in cases
involving federal criminal statutes presumes the existence of a federal policy
that such rules or privileges should apply regardless of the state in which the
action or crime occurred.31 6 This is not the situation with the reporter's
311. As the Supreme Court has noted in the context of the attorney-client privilege,
"Disparate decisions in cases applying [the control group test] illustrate its unpredictability."
Upjohn Company v. United States, 449 U.S. 383, 393 (1981). The same unpredictability
exists when the result in federal court is substantially different from the result that could be
obtained in the local jurisdiction. See also 116 CONG. REC. H6254 (daily ed. Mar. 5, 1970)
(statement of Rep. Ottinger) (noting that psychiatrists could not practice without a guarantee
to their clients of absolute confidentiality and, because of that, such sanctity of communication
is extended to accountants, lawyers and priests); 118 CONG. REC. S33610 (daily ed. Oct. 4,
1972) (statement of Sen. Cranston) (noting that the law recognizes absolute privileges for
attorney-client, priest-penitent, and spouses, that nobody has tried to qualify them by creating
murder exceptions to the attorney-client privilege or espionage exceptions to the priestpenitent privilege, and then questioning why such an absolute privilege is not accorded to the
press).
312. 449 U.S. at 391-93.
313. Id. at 393.
314. Id.
315. Jaffee v. Redmond, 518 U.S. at 1, 13 (1986).
316. See generally D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942).
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THE RULE 501 BLUES
privilege. There is no general, overriding federal policy in regard to the
application of the privilege. In fact, the only federal policy that exists is that
there is no policy.317
Branzburg rejected the existence of any reporter's privilege in grand jury
or criminal proceedings 31 8 and invited Congress to create a privilege. 319 Yet,
congress chose not to enact such legislation. 32' Rule 501 allows the creation
of a new privilege "in the light of reason and experience. '32' The Supreme
Court has not created a reporter's privilege, deferring to congressional
enactment of evidentiary rules,322 even though Rule 501 was adopted to leave
such rulemaking to the Supreme Court.323 Thus, the argument comes full circle
that the reporter's privilege should not be controlled by federal procedural
rules.324
XII. CONCLUSION: CONGRESS SHOULD CREATE AN EVIDENTIARY
EXCEPTION FOR THE REPORTER'S PRIVILEGE
Upholding the right of the states to create their own shield law vel non is
important for at least two reasons. First, nineteen states had enacted such laws
prior to the issuance of the Branzburg decision,325 thereby indicating that it is
a state-based issue.3 26 Second, Branzburg recommended that the individual
317. Branzburg v. Hayes, 408 U.S. 665, 698-99(1972).
318. Id. at 690-91.
319. Id. at 706.
320. See supra notes 149-60; see also In re Lewis, 384 F. Supp. 133, 140 (C.D. Cal.
1974) (concluding that Congress rejected the pleas of the media seeking a federal shield law).
321. FED. R. EvID. 501.
322. See University of Pennsylvania. v. EEOC, 493 U.S. 182, 189 (1990).
323. See United States v. Weber Aircraft Corp., 465 U.S. 792, 803 n.25 (1984)
(explaining that Rule 501 was adopted because Congress wished to leave questions of
privilege to the courts rather than attempt to codify them).
324. In re Lewis, 384 F Supp. at 140 (concluding that Rule 501 places the onus on the
federal courts to create a reporter's privilege and their failure to do so "brings us back once
again to [Branzburg]").
325. Branzburg v. Hayes, 408 U.S. 665, 689 n.27 (1972). Even if one argued that the
issue was first presented to the Court in 1958, when the Supreme Court denied certiorari in
Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910 (1958), at least
eleven states already had shield laws in place, those being Alabama, Arizona, Arkansas,
California, Indiana, Kentucky, Maryland, Michigan, Montana, New Jersey, and Pennsylvania.
Exparte Sparrow, 14 F.R.D. 351, 353 (N.D. Ala. 1953).
326. But see generally Jaffe v. Redmond, 518 U.S. 1, 14 (1996) (noting the fact that the
faster development of psychotherapist-patient privilege occurred in the state legislatures
rather than under the Federal Rules did not prevent the federal system from creating such a
privilege in federal courts). See also Trammel v. United States, 445 U.S. 40, 48 (1980)
(illustrating that federal privileges can be accepted or rejected based on trends among the
states to create or abolish a privilege).
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[Vol. 38:3
states could pass such laws if they so chose.327 The bottom line is that the
reporter's privilege is completely divorced from federal law. Prior to
Branzburg, the Supreme Court was writing on a fairly clean slate because
there were no previous Supreme Court rulings in this area. 328 The Branzburg
Court had the opportunity to create a qualified privilege, as suggested by
Justice Stewart, or an absolute privilege, as espoused by Justice Douglas.32 9
The Supreme Court, however, explicitly ruled that there was neither a First
Amendment nor a common law privilege for a journalist to refuse
to disclose
330
a confidential source in a grand jury or criminal proceeding.
Therefore, creating an overriding federal privilege in criminal matters does
not comport with the Supreme Court rulings discussed in this article. In order
to rectify this situation, it would be preferable for Congress to amend Rule 501
or enact new legislation, rather than have it imposed by judicial fiat. While the
Supreme Court could rule that the determination of a reporter's privilege in a
grand jury or criminal proceeding should be determined by state law, much as
it did in Erie3 3' for diversity cases, the existence of Rule 501 advocates for an
amendment to the Rule. Because Rule 501 incorporates the Erie ruling, it
would make more sense to incorporate this proposed change in the Rule.332
The Supreme Court has said that Congress clearly has the power to provide
that a state-based privilege could be accorded the same rights in a federal
case. 333
To avoid the inconsistency and unpredictability surrounding the reporter's
privilege created by federal and state courts, the best solution is for Congress
to modify Rule 501. Congress should specifically provide that the forum
state's reporter's privilege, if one exists, shall be applied in federal grand jury
and criminal proceedings. Congress should also amend Rule 501 to provide
327. Branzburg, 408 U.S. at 706. While the Court also made such a recommendation
in Congress' direction, Congress elected not to follow the Court's suggestion. Id.
328. The Court had previously denied review of the issue on three occasions. See supra
note 54; see also Garland,259 F.2d at 550 (finding no reason to depart from federal or state
precedents, the Second Circuit refused to recognize such a privilege in the absence of a statute
creating one); Exparte Sparrow, 14 F.R.D. at 353 (noting that no federal reporter privilege
exists).
329. See also Sherwood, supra note 33, at 1199 (arguing, in 1970, for the need of a
Supreme Court ruling in the area).
330. Branzburg, 408 U.S. at 698-99.
331. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
332. See United States v. Gillock, 445 U.S. 360, 374 (1980) (stating that Congress has
the power to import the "spirit" of Erie into federal criminal law and to direct federal courts
to apply an evidentiary privilege accorded in state court to a federal prosecution).
333. Id. at 374 (refusing to extend the federal speech and debate clause privilege to
state legislators indicted in federal court in the absence of Congressional action or a
constitutional limitation).
2002/03]
THE RULE 501 BLUES
that in the few state jurisdictions that do not have a shield law, Branzburg
should then apply. This solution would reinforce the ruling in Branzburg and
would prevent the possibility of a media source receiving protection from
disclosure in a state grand jury or criminal action while receiving none in the
federal system in the same state.334
334. The author realizes that there are certain overriding matters affecting national
security that require an exception to be carved out in those states that provide for an absolute
privilege. When the security of the country is in reasonable danger, such as occurred in the
aftermath of the terrorist attacks in New York City and Washington, D.C. on September 11,
2001, some procedure should be provided by Congress to allow a federal grand jury or federal
prosecutor to seek waiver of any absolute state-based privilege.