Brooklyn Law Review


Megan L. Shaw


The press is under fire. Members of the press often face subpoenas or similar court orders, compelling the disclosure of a source’s identity. By issuing media subpoenas, the government has effectively censored the press—the exact type of censorship that the Supreme Court held presumptively unconstitutional over eight decades ago in Near v. Minnesota. Yet the least protected—and most complicated—aspect of the newsgathering process is a reporter’s relationship with her source. For decades, journalists have tried to assert defenses to government compulsions on First Amendment grounds as well as by invoking a “reporter’s privilege,” a testimonial privilege similar to that of a physician or an attorney. But the reporter’s privilege is far from well-settled law. The ambiguities at the federal level as to the bounds of the press’ First Amendment protections have significantly burdened the newsgathering process. Today’s chaotic political climate demands that the Supreme Court address the fragmented framework currently used to analyze the existence of a reporter privilege. The federal judiciary must begin analyzing media subpoenas as prior restraints. If courts apply the prior restraint balancing test—a test which permits censorship only under extremely compelling circumstances—the federal judiciary can accommodate the interests of the government without chilling the press. Absent a framework in which members of the press can consistently protect confidential information, sources will stop disclosing valuable information for fear of retribution, leaving journalists with less accurate and less timely facts from which to report to the public.