Source Protection and the Gulf Between Press and Speech Freedom

-- By HillaryHubley - 13 Mar 2020

Introduction

Journalistic privilege is the right journalists can invoke when compelled by the government or law enforcement to disclose information relayed in confidence by a source with the goal of it being published or otherwise disseminated. By viewing this right as resting exclusively with the journalist, and enshrined under the first amendment’s press protection, we limit its scope and efficacy. I argue that the protection we afford sources and the materials they provide to journalists in service of their stories would be made stronger by recognizing it as a collective right – one that rests both with the speaker and the publisher – and that doing so would help narrow the gap between speech and press freedom, better suiting the right for modern day.

A Press Right

The origins of journalistic privilege are somewhat ill defined. The Supreme Court declined to accept the privilege when invoked in Branzburg v. Hayes, finding that under certain conditions it could be overridden by a compelling government interest. It subsequently engaged in rights balancing – the journalist’s privilege as against the restriction imposed. This holding is something legal scholars have later classified as enshrining a “qualified first amendment privilege.” There is no consistency in adjudicating this right.

Engaging in constitutional balancing works in theory but viewing this right as resting just with the journalist and the journalist’s press freedom results in a myriad of issues. These include accreditation and line drawing about the importance of reporting among others. It also compels our complicated relationship with media, one that is becoming ever more complicated, to be baked into the calculus. Furthermore, even conceding that one journalist may be worthy of protection does not implicate every other non-journalist in the chain of production, further limiting the right. Lastly, today everyone has the ability to publish anything. In light of these conditions, it is not clear whether and where the additional protection of journalistic privilege extends.

A Speech Right

Although journalistic privilege has traditionally rested, it can also be viewed as a speech right. There are two principal reasons for this. First, the privilege is predicated upon the information relayed by the source to the journalist. One can view this act of communicating confidential information as an exercise of free speech itself. Although the speaker is relying on the publisher to give weight to his or her words, they are nonetheless spoken. This is a particularly crucial consideration given the gravity of the confidential information is at the heart of the court’s balancing test. In other words, the speech is as important as the journalist’s right to not divulge it.

Secondly, there is the attenuated but undeniable connection between compelling journalists to reveal source material and the public’s right to access information. Foreign courts have recognized this concept as a “chilling effect” on the right to expression. Compelled disclosure has a ripple effect. If sources have a reason to believe their information will be divulged, they may not be willing to share it. This acts as a censor on their speech right discussed above. Furthermore, this compromised form of reporting implicates the right to read. If we are to attribute any heightened value to the printed word, it is that it can be absorbed by others. Viewing journalistic privilege as exclusively a press right obscures these goals.

Integration

Journalistic privilege implicates the rights of both speech and the press. Viewing it as implicating “free expression” holistically would resolve this tension and give courts a more solid understanding of the protection. An umbrella right would see no distinction between speaking and publishing, capturing all written and otherwise communicated content. It would also capture the interests of the various stakeholders addressed above.

Integrating these rights, as opposed to reallocating where they are vested is important because the actors rely on each other. Furthermore, taking an expansive approach ensures nothing will be lost in balancing.

Balancing Expression

Balancing the general right to free expression as against the restriction or action to compel disclosure is an approach commonly adopted by foreign courts. For example, it is used with some frequency in Europe. Although the European courts employ a different balancing approach, their calculus of rights versus restrictions exhibit an understanding of what is at stake. By encapsulating the rights of the public, the sources, and the publishers, they can more accurately assess the impact of the restriction.

The migration of this idea of an integrated right would not result in any dramatic shift in the way the court approaches balancing. Courts in the United States already engage in an approach that is fact specific. Expanding the scope of what is at stake would not interrupt the calculus, it would merely enhance it.

What Is Protected

Incorporating the speech right into journalistic privilege would also open the door for what type of information is covered. While source protection is generally construed narrowly – to encompass source names and corresponding information – the restrictions on such rights take many forms. These include subpoenas, but also implicate mass surveillance and impromptu search and seizure. If courts endeavor to broaden the right to consider it an attack on the right to speak freely, these insidious and pervasive practices could be regulated without the aid of the fourth amendment. This idea has started to take hold abroad, with the European Court of Human Rights’ decision in Big Brother Watch as an example.

Conclusion

The United States should consider revisiting its clausification of the first amendment, recasting the rights of speech and press as integrated when applying them to the qualified right of journalistic privilege.

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