Reporter’s privilege is the right asserted by journalists to keep their sources confidential in the face of a court order to reveal the information. The U.S. Supreme Court considered that issue only once, in 1972, in the case of Branzburg v. Hayes, 408 U.S. 665. The Court in a 5-4 decision said that reporters did not enjoy a First Amendment right to a reporter’s privilege, at least as regards demands that they testify before grand juries. The Court cited the strong societal interest in obtaining evidence for the benefit of law enforcement. In a concurring opinion, however, Justice Powell said that requests for privilege should be considered on a case-by-case basis. In dissent, Justice Stewart proposed a test to be used when the government seeks to compel a journalist to reveal sources: That the government “must show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and demonstrate a compelling and overriding interest in the information.” In the wake of Branzburg, reporters have no privilege before a grand jury, but most U.S. Courts of Appeals recognize some version of a reporter’s privilege in criminal and civil cases, often using Stewart’s test. The majority of states have some form of statutory or state constitutional reporter’s privilege to govern instances when the issue arises in their own state courts; these protections vary widely in their reach and effectiveness.

Branzburg V. Hayes Full Text>


The Reporters Committee for Freedom of the Press offers a detailed guide to the law as well as a state-by-state guide to reporter’s privilege.