95 N.C. L. Rev. 1314 (2017)
The United States public consistently relies on press coverage of leaked material to hold government actors accountable for controversial operations. Despite the important and prominent role of confidential sources in government reporting, commentators and jurists have debated whether or not reporters are protected from being required to reveal information about those confidential sources for over forty years. In other words, the existence of a reporter’s privilege is still debated. The incertitude began with the Supreme Court’s enigmatic 1972 decision Branzburg v. Hayes—the Court’s only decision addressing the existence of a reporter’s privilege. The failure to clarify this decision has produced significant disagreements between the circuits regarding the existence and scope of the reporter’s privilege. This confusion among the circuit courts is embodied in the Fourth Circuit’s 2013 decision United States v. Sterling. While the Sterling majority held that Branzburg foreclosed the possibility of providing special First Amendment protection to reporters against federal subpoenas in criminal cases, the dissent found that this increased testimonial protection was entirely consistent with Branzburg.
As exemplified by the divided three-judge panel in Sterling, the post-Branzburg debate has been convoluted. Since Branzburg, scholars have debated what effect, if any, increased protections for journalists would have on the collection and dissemination of information by the press. On one side, proponents of a reporter’s privilege assert that protections facilitating and supporting press-society conversations are in the best interest of the public. If these pivotal conversations are not subject to any legal protection, they argue, then fear of punishment, retaliation, injury to reputation, and loss of privacy will severely limit the quality and quantity of this communication, if not eliminate it altogether. In contrast, others view the addition of journalist-source protections as an impediment to the truth-seeking function of the judiciary, since it has the effect of excluding evidence that “might be very trustworthy and highly relevant.” Additionally, these opponents view a reporter’s privilege as unnecessary to the promotion of the free flow of information, arguing that investigative journalism has thrived in this country despite the absence of explicit First Amendment or congressional protections.
And yet, while the clear judicial or legislative adoption—or even rejection—of a federal reporter’s privilege is traditionally seen as the ideal solution to the Branzburg inconsistency, this Recent Development suggests that this proposed remedy may ultimately be futile. Congress and the Supreme Court’s continued unwillingness to recognize a uniform federal reporter’s privilege has adversely affected reporters and their sources by facilitating inconsistent and unfair treatment of reporters across jurisdictional lines. Meanwhile, technological advancements that allow the government to obtain the same confidential information without a subpoena and the recently leaked guidelines governing the Federal Bureau of Investigation’s (“FBI”) use of National Security Letters (“NSLs”) in the news media indicate that the central threat to newsgathering is no longer the existence or lack of federal testimonial protection. Rather, because these developments hinge solely on government behavior outside the subpoena process, increased testimonial protection for reporters is no longer capable of remedying the negative effects on the newsgathering and news dissemination processes. Therefore, the more significant danger is now found in the government’s ability to gather information regarding a reporter’s source of confidential information through means other than judicial subpoenas. Consequently, an effective solution to the modern reporter’s privilege debate must take this concern into account.