Journalists’ Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes
Testimonial privileges are generally granted by common law or by statute; these include the lawyer-client and the doctor-patient privileges. There is also one testimonial privilege expressly granted in the United States Constitution: the Fifth Amendment’s guarantee that no person “shall be compelled in any criminal case to be a witness against himself.”
Absent a statutory or constitutional recognition of journalists’ privilege, a reporter may be compelled to testify in legal, administrative, or other governmental proceedings. [...]
The journalists’ privilege is distinct from other recognized privileges in that it vests only with the journalist, not with the source of the information.
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court ruled for the first and only time on a claim of journalists’ privilege. It held that journalists have no constitutional privilege to refuse to testify before a grand jury, unless the grand jury investigation was “instituted or conducted other than in good faith.” Id. at 707.
The court reasoned that the public’s interest in prosecuting crime outweighed its interest in journalists’ being permitted to preserve their confidential relationships.
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