Both the first amendment and federal common law recognize a qualified privilege by journalists to resist criminal process. This brief first analyzes both the Supreme Court’s holding and reasoning in Branzburg v. Hayes, 408 U.S. 665 (1972), and its interpretation by lower circuits for the reporter’s privilege under the First Amendment. The brief then examines Fed. R. Evid. 501 and the evolution of federal common law related to the reporter’s privilege.
The Tenth Circuit reviews a district court’s order granting a motion to quash a grand jury subpoena for an abuse of discretion. See In re Grand Jury Proceedings, 616 F.3d 1186, 1201 (10th Cir. 2010). “A district court abuses its discretion when it commits an error of law.” United States v. Commanche, 577 F.3d 1261, 1266 (10th Cir. 2009). Whether the First Amendment or the federal common law recognizes a qualified privilege by journalists to resist criminal process is a pure question of law. The Tenth Circuit reviews purely legal questions de novo. See In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990).
A. The District Court Correctly Recognized a Qualified Reporter’s Privilege Arising under the First Amendment That Protects Against Disclosure of Confidential Source Information in a Criminal Context.
The district court correctly held that, “based on Silkwood, . . . the Tenth Circuit would recognize a qualified privilege by journalists to resist criminal process.” R. at 3. This holding is consistent with both the Supreme Court’s reasoning in Branzburg and with the interpretation of Branzburg by a vast majority of circuits.
1. The Supre...
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Further, strong public policies exist in favor of protecting journalists from making compelled disclosures. Protection for the press serves the private end of encouraging individuals to provide journalists with truthful, newsworthy information anonymously. Such protection also serves the important public function of keeping the public informed, and providing essential information for making governing decisions in a democracy. See Ashcraft, 218 F.3d at 287. Indeed, confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public by keeping it informed. Therefore, public policies also strongly favor shielding journalists from involuntary disclosures of confidential news sources, including in criminal cases.
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