Chapter 8 focuses on the laws affecting journalists’ attempts to access information. Chapter 9 analyzes the law that addresses whether journalists can be compelled to share information in their possession.

Chapter 8 examines the often-controversial subject of reporter’s privilege. It has long been accepted that certain communication between individuals is privileged. This includes when a client speaks to a lawyer and a patient to a doctor. Information is shared in confidence. The law recognizes the unfairness of forcing the lawyer or doctor to reveal information obtained in those conversations. Many journalists and their advocates claim a similar kind of privilege should exist when journalists obtain information from sources, particularly sources that provide information only on the condition of confidentiality. Some argue that the First Amendment freedom of the press clause should be read to grant this privilege. Otherwise, they say, the free flow of information is blocked. To impede the press, the argument continues, violates the First Amendment.

But the U.S. Supreme Court has not accepted that reasoning. At the most, what can be said is that a qualified privilege exists for reporters who do not want to divulge information or materials. The privilege is qualified largely on the elements outlined by the Supreme Court in Branzburg v. Hayes (1972). The privilege is unclear in many respects, including to whom it applies. The chapter discusses whether freelancers—a category to which newsgatherers and commentators increasingly belong—may use the privilege’s protection.

Data gathered from courts as well as recent high-profile cases, including the year-long prosecution and public pursuit of New York Times reporter James Risen, suggest the thin and sometimes tenuous protections of reporter’s privilege. The Fourth Circuit Court’s decision (in one Risen suit) that there is no First Amendment or common law privilege for journalists forces greater reliance on state shield laws. Shield law rulings are extremely fact-specific, and recent studies indicate that state court contempt citations against reporters are increasing with some newsgatherers spending lengthy stretches in jail. Statements from government agencies, including the Department of Justice, that they issue subpoenas to journalists only as a last resort sometimes ring hollow.

The Supreme Court was very clear that no reporter’s privilege exists in grand jury situations. When reporters refuse to comply with a grand jury subpoena, they may be charged with criminal contempt of court and sentenced to jail. This is what happened to New York Times reporter Judith Miller in 2005. She followed in the footsteps of many reporters who chose principle over prison.

In the Branzburg ruling—itself complex and convoluted, but explained in Chapter 9—the Court suggested that state and federal lawmakers should consider legislation that would provide the kind of protection reporters had been seeking. Some states had “shield” laws, and others followed suit. Congress has not passed a federal shield law, though recent events have spurred renewed talk about Congress’ adopting such a measure.

Shield laws, however, are no panacea. State shield laws vary widely in what and whom they protect. Should shield laws protect book authors, freelancers, and bloggers? The answers differ state to state. The lack of uniformity—not merely across shield laws, but more broadly, in the realm of reporter’s privilege—is significant.

Another element explored in Chapter 9 is related to the reporter’s privilege scenario? What happens when a source grants a reporter information based on a promise of confidentiality, but then the reporter or an editor decides to break the promise and identify the source? Does “freedom of the press” mean the right to break promises? The answer to these questions was provided by the U.S. Supreme Court in Cohen v. Cowles Media Co. And the answer is “No.” This is another area where the law is generally applicable. The legal doctrine that applies in this instance is promissory estoppel.

Somewhat similar to the subpoena that compels compliance, a search warrant authorizes law enforcement agents to look for materials on a specific site. However, whereas subpoenas do not demand immediate compliance, search warrants do. Whether the First Amendment bars search warrants being executed on newsrooms was answered by the U.S. Supreme Court in Zurcher v. Stanford Daily. Newsrooms are not exempt from search warrants. In the wake of that ruling, as explained in a Chapter 9 sidebar, law enforcement exploited this newly Court-validated authority. In response, congress passed the Privacy Protection Act. The law blunted the effects of Zurcher by restraining its scope and authority