Journalists' Privilege: Overview of the Law and Legislation in Recent Congresses

摘要

On July 6, 2005, a federal district court in Washington, DC, found Judith Miller of the New York Times in contempt of court for refusing to cooperate in a grand jury investigation relating to the leak of the identity of an undercover CIA agent. The court ordered Ms. Miller to serve time in jail. Ms. Miller spent 85 days in jail. She secured her release only after her informant, I. Lewis Libby, gave her permission to reveal his identity. This incident drew attention to the question whether journalists should have a right to withhold information sought in judicial proceedings. Forty-nine states afford journalists some protection from compelled release of their confidential sources. The question remains, however, as to whether a concomitant federal privilege exists. The Supreme Court has addressed the issue of journalists' privilege under the First Amendment only once; in Branzburg v. Hayes, it held that the First Amendment provided no privilege to refuse to testify before a grand jury, but it left open the question of whether the First Amendment provides journalists with a privilege in any other circumstances. But, whether or not the First Amendment provides a privilege for journalists to refuse to reveal confidential sources, Congress may provide a privilege through legislation.