United States Constitution

The Supreme Court held that no such “reporter’s privilege” existed under the Press Clause of the First Amendment. The majority was not convinced that the risk and burden this placed on the press would be as bad as the press advocates argued. The Court concluded that the press had been successful so far without that constitutional privilege, so the decision would not change anything. On the other hand, giving reporter’s the ability to refuse to answer a grand jury – something other citizens can’t do – would hurt law enforcement and judicial proceedings. The Court acknowledged that the press was still due some protection, so it settled on a test: in order for a subpoena for a reporter regarding his sources to be valid, there must be a clear connection between the information sought and a compelling government interest.

Justice Powell, the deciding vote, wrote a concurrence where he urged a balancing test. In his notes published much later, it became clear that Justice Powell did not want to establish a constitutional privilege, but instead an evidentiary rules privilege. His notes expressed concern on creating a constitutional privilege because it would become difficult for the court to decide who could be considered “the press” under the privilege’s protection. Some states have interpreted Justice Powell’s concurrence as confirmation that some sort of reporter’s privilege exists, and have implemented their own state laws creating one.

As recently as 2014, the Court has still shown unwillingness to provide a shield for journalists’ anonymous sources. Without issuing an opinion, the Court declined to hear the case of a New York Times reporter facing jail time for refusing to name his CIA source, who the government accuses of illegally leaking information.

The Court has held that searches of news rooms for source material does not violate the freedom of the press or the Fourth Amendment. In Zurcher v. Sanford Daly, police raided and searched a newsroom they believed had pictures of individuals at a recent student protest they were investigating. The newspaper sued, and the Court held that even as third parties who were not suspected of a crime, a search warrant could still be issued for evidence of a crime. The Court reasoned that the normal procedure for getting a search warrant was sufficient protection enough to address any First Amendment concerns. Congress later passed the Privacy Protection Act of 1980 in response to this decision, giving greater protection to journalists from police searches of their offices.

One area where the Court has decided to extend a shield to the press is in regards to liability of the press for the actions of sources. Frequently, when a source leaks information to the press, the manner in which a source has obtained the information or released the information is illegal. This begs the question of whether or not the press is allowed to report or publish information which has been acquired through illegal means.

In the 2001 decision Bartnicki v. Vopper, a phone call between a union boss and a lead negotiator regarding a strike was illegally recorded. The press subsequently broadcast the tape, and the union president sued. At the time, a party that willfully disclosing communications that it knows were obtained illegally was in violation of the law. The defendant conceded this, but argued that his reception of the recording from the source was lawful, and that the publishing was protected by the First Amendment.

The Court agreed with this interpretation. First, the Court reasoned that the purpose of the statute was to deter people from wiretapping conversations: since the press in this case did not actually do the wiretapping, holding them accountable did little to fulfill the purpose of the law. The recording was anonymously delivered to the defendant. Furthermore, the contents of the illegal recording were of public interest, regarding a controversial labor dispute. Therefore reporting on recordings of public interest should be given the same level of protection that was afforded to other reports or criticisms of public figures and government officials (such as in New York Times v. Sullivan).

Zurcher v. Sanford Daily (1978)

Bartnicki v. Vopper (2001)