NCJ Number
116122
Journal
George Washington Law Review Volume: 57 Issue: 1 Dated: (November 1988) Pages: 13-50
Date Published
1988
Length
38 pages
Annotation
The United States Supreme Court's jurisprudence since its decision in Branzburg v. Hayes in 1972 demonstrates that the Branzburg analysis should not govern the adjudication of disputes over a journalist's confidential sources, at least in the context of reporting about the government.
Abstract
The Branzburg decision simultaneously offers both a starting place for the analysis of a journalist's asserted constitutional right to maintain confidential relationships with sources of information and an analytical barrier to meaningful consideration of the issue. Where the information sought to be disseminated involves the operation of government, constitutional jurisprudence indicates that journalists should enjoy a broad privilege when they promise confidentiality in exchange for information about the government and its operations. Branzburg's failure to contemplate the role of confidential sources in this setting, especially in view of their crucial role in the process of meaningful reporting about government in contemporary journalism, has resulted in an unfortunate perpetuation of Branzburg's narrow analysis, even in cases in which some form of First Amendment-based protection has been recognized and implemented. Thus, the overriding constitutional value of expression about governmental activities should rarely, if ever, be subordinated to a competing governmental interest justifying the compelled disclosure of a source's identity. 200 footnotes.