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November 7, 2009

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The Reporter’s Privilege: How Far Does it Extend?
BLS American Constitution Society Discusses the Legal Sanctity of Source Anonymity

It has been more than 30 years since the Supreme Court considered the question of whether reporters have a common law or constitutional privilege to refuse to discuss their confidential socures. In Branzburg v. Hayes, (408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972)), the justices held that the privilege does not apply in grand jury proceedings. Now the topic is again in the legal spotlight with a contempt ruling by a D.C. federal judge and a threat of jail for New York Times reporter Judith Miller for failing to identify a confidential source during a grand jury proceeding.

To discuss Miller’s case and its ramifications, the Brooklyn Law School American Constitution Society sponsored a panel in March entitled “The Necessity of a Federal Privilege for Reporters: Is a Statutory or Constitutional Privilege Necessary to Protect Confidential Sources?”

Professor Michael Madow, an expert in First Amendment law, moderated the discussion. He began the dialogue by noting that although some states have shield laws, which protect reporters from having to disclose confidential information he or she obtained while newsgathering, there is no comparable federal statute. To counter this lack of federal protection, The Free Flow of Information Act 2005 was introduced in Congress earlier this year.

Andrew Hruska, Chief Assistant U.S. Attorney for the Eastern District of New York, defended the government’s use of reporter subpoenas for grand jury purposes, arguing that such subpoenas are “handled with care” and are limited in time and subject matter to only what the government needs for the grand jury.

New York Times reporter and former attorney Adam Liptak, noted the irony of Hruska’s position since Department of Justice employees often benefit from source protection when quoted as “government officials” in stories. “Sources aren’t open to anything less than absolute privilege. They either trust you or they don’t,” Liptak said. “In a way, [Judith Miller going to jail] is good because it sends a powerful message to sources that reporters are going to protect you no matter what.”

Among the other distinguished participants were: George Freeman, Assistant General Counsel for The New York Times; Bob Feinberg, Deputy General Counsel for American Lawyer Media, Inc.; and David Korzenik, a partner in the firm of Miller and Korzenik LLP. who specializes in intellectual property and entertainment law.

Article by Jennifer Williams '07

View video from the event.

Read more about the Brooklyn Law School American Constitution Society.

This page last modified on: July 13, 2006.