The Yale Law Journal

March 2018

The De Facto Reporter’s Privilege

EvidenceMedia Law

abstract. While the overwhelming majority of states have established constitutional, statutory, or common-law protections for reporters who shield the identity of a confidential source, there is no uniform, crosscutting federal reporter’s privilege. As a consequence, reporters subpoenaed in federal cases often lack effective formal protections. This can have a chilling effect on newsgathering: sources—and reporters—may find little comfort in knowing that a source’s anonymity is preserved only at a judge’s or prosecutor’s discretion or by a reporter’s willingness to go to jail.

For decades, both those in favor of a formal federal reporter’s privilege and those opposed to it have marshaled historical arguments. Proponents point to the imprisonment of reporters in the past and argue that a privilege will ensure that confidential sources continue to provide the press—and ultimately, the public—with information. Opponents argue that the press has long flourished without a federal source of protection and that there is no indication that this flow of information will be constricted in the future.

Yet both sides of this debate have limited their historical inquiry to a small number of published reporter’s privilege cases. In this Article, I argue that such an accounting is incomplete. Focusing only on traditional black-letter law does not give us the whole picture of how reporters have fared. Drawing on a variety of historical sources, including newspaper articles, autobiographies, legislative records, and both published and unpublished cases, I conclude—contrary to the prevailing view that reporters enjoyed little protection at common law—that there is a well-established tradition in the American legal and political system of protecting the press. I argue that longstanding efforts by judges, legislators, and prosecutors to shield reporters and their sources have created a web of informal, yet functional, protections. I refer to this as the “de facto” reporter’s privilege.

Illuminating the contours of this de facto privilege offers a number of insights. Most importantly, it demonstrates that merely pointing to the historical absence of a formal privilege is not a sufficient reason to oppose its creation. Such an inquiry fails to account for the full ecosystem of protections—both formal and informal—that have long protected the press. Instead, legislators and policymakers must also ask whether these informal protections remain robust. And if they do not, formalized protections may be not only appropriate, but necessary.

author. First Amendment Fellow, The New York Times. Many thanks to Floyd Abrams, Sheila Baynes, Emily Bazelon, Catherine Crump, Dennis Curtis, Mark Goldberg, Daniel Kuo, John Langford, Ian MacDougall, David McCraw, David Pozen, David Schulz, Will Smiley, and Jacob Victor, as well as to the participants at Yale Law School’s Freedom of Expression Scholars Conference and to Camila Vega and the other editors of the Yale Law Journal. I am especially grateful to the Center for Law and Technology at U.C. Berkeley School of Law and the Guanghua Law School at Zhejiang University for supporting this research.