INTRODUCTION :: For fifty years, the courts have debated whether the First Amendment guarantee of freedom of the press requires that journalists be allowed to protect confidential sources. Many state and federal courts have answered in the affirmative, creating a First Amendment “reporter’s privilege.” The Supreme Court has declined to recognize such a privilege, but has not foreclosed the possibility. This Article suggests that the constitutional guarantee can be honored without prescribing a constitutionally defined privilege. Whether freedom of the press requires protection of confidential sources is one question; what means should be chosen to protect them is another. Courts should separate the two questions, deciding the first as a matter of constitutional law while leaving the choice of means largely to legislatures and common law resolution. Concerns about the scope and administration of a First Amendment privilege have deflected attention away from the underlying issue: whether compelled disclosure of sources abridges freedom of the press.
April 2014, Vol. 66, No. 2
Sergio J. Campos, Class Actions and Justiciability
Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules
Alberto R. Gonzales & Amy L. Moore, No Right at All: Putting Consular Notification in its Rightful Place After Medellin
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication
Stephen E. Ludovici, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality