Rethinking Reporter's Privilege: Anonymous Speech & Journalists' Sources

September 13, 2012

The Program in Public Law presents Professor RonNell Andersen Jones (J. Reuben Clark Law School, Brigham Young University). Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source, resulting in a reporter-focused "privilege" now widely regarded to be doctrinally questionable and deeply inconsistent in application. Jones argues that the Court should abandon its reporter-based approach to confidential-source cases and suggests that analyzing these cases based on the anonymous speech rights of sources rather than on the information-flow or news gathering rights of the reporters will more fully acknowledge the scope of First Amendment interests at stake and eliminate the need to define who is a "reporter" for purposes of the privilege--a task that has become increasingly complicated as technological changes alter the primary mechanisms for gathering and disseminating news.