"Reporter's Privilege" and First Amendment Protection of Newsrooms from Government Searches
In Branzburg v Hayes (1972), the Court considered the case of a reporter who, in two newspaper stories about drug use, had reported his observations of persons smoking marijuana at a party and of two men turning marijuana into hashish. Called before a grand jury to testify concerning the identities of drug users and drug synthesizers, Branzburg refused, claiming that the First Amendment provided reporters with a privilege against testifying in such circumstances. The Court disagreed, rejecting the notion that the First Amendment offered any absolute privilege. Four members of the Court went so far as to write that the First Amendment offered the press no protection against testifying that would not be available to any member of the general public. In a critical concurring opinion, however, Justice Powell indicated that the First Amendment requires that goverment at least demonstrate that its demands have a real bearing to a subject under investigation and that there exists "a legitimate law enforcement need" for the information sought from a reporter. Lower courts have found Powell's concurrence to be the basis for a "qualified privilege" that protects reporters from government "fishing expeditions," as well as from having to testify in many civil cases. The four dissenters in Branzburg would have required the government to show a compelling need for a reporter's testimony and that there existed no good alternative sources for the sought-after information.
Six years later, in Zurcher v Stanford Daily, the Court upheld the government's right to search a newsroom for evidence of the identities of persons engaged in criminal conduct. The case involved an effort by local police to find photographs that might reveal the identities of persons engaged in a violent demonstration that left nine police officers injured. The Court rejected the paper's argument that the First Amendment required authorities to seek to obtain information by a subpoena rather than a search with a warrant. The Court cautioned, however, Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude."
A First Amendment Right of Access to Persons and Places Under Government Control?
Several cases have raised the issue of a First Amendment right of access to persons and places under government control. In two cases, the Court considered whether bans by prison officials on media interviews of prisoners violated the First Amendment. In 1974, the Court in Saxbe v Washington Post upheld a federal prison policy that restricted press interviews with inmates in medium and maximum security prisons. The press argued that only by allowing face-to-face interviews with specified inmates could the press adequately fulfill its newsgathering role under the First Amendment. The Court, however, suggested that the press had no constitutional right of access greater than that afforded the general public. At the same, the Court noted that the policy allowed interviews with randomly selected inmates, as well as brief interviews with inmates met on tours, thus leaving some doubt as to whether a more restrictive policy would have been upheld. Four dissenters found the government's reasons for restricting interviews insufficient to meet the "narrow tailoring" and "important state interest" tests that they would have employed. Four years later, in Houchins v KQED, the Court, voting 4 to 3, upheld another restrictive prison interview policy. In a concurring opinion in the case, Justice Stewart wrote that he believed the First Amendment afforded some right of press access to prisons, but did not guarantee the type of access sought by KQED in the case.
In Richmond Newspapers v Virginia (1980), the Court found the First Amendment gave the press a right of access to courtrooms, absent a compelling government need (such as to protect a minor's privacy or national security). In a concurring opinion, Justice Stevens stressed the significance of the holding: "This is a watershed case. Until today the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever."
Press Protection of Sources and Information
Branzburg v Hayes (1972)
Zurcher v Stanford Daily (1978)
Press Access to Sources and Information
Saxbe v Washington Post (1974)
Richmond Newspapers v Virginia (1980)
1. Is it even
tenable to argue that the press should enjoy an absolute privilege that
would protect them from having to reveal sources? Consider the case of
a person on trial for his life who seeks the testimony of a reporter
who either saw another person commit the crime, or has strong evidence
of the defendant's innocense. Doesn't the defendant have a clear
Sixth Amendment right to the reporter's testimony?