Federal Communications Law Journal

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62 Federal Communications Law Journal 403 (2010)


Journalists who use secret sources may be presented with a staggering dilemma-disclose the source to comply with a subpoena or go to jail to protect the source. Despite the U.S. Supreme Court's holding in Branzburg v. Hayes (1972), most jurisdictions now recognize that journalists have a privilege not to disclose their confidential sources when compelled to do so by the government. While the degree of the privilege's protection varies across jurisdictions, the fact that such a privilege exists at all may surprise anyone who has read Branzburg, which held that the First Amendment cannot support the existence of the privilege. Notwithstanding the growing acceptance of the journalist's privilege, Congress has never enacted a federal shield law. Supporters of a shield law cite recent cases of jailed journalists, such as Judith Miller, to stress the growing importance of the passage of a federal shield law to protect the Fourth Estate.

This Note discusses the cases of the three U.S. journalists who spent more time in jail for failing to disclose their sources than any other journalists: (1) Vanessa Leggett, an aspiring true-crime novelist, who spent 168 days in contempt; (2) Judith Miller, a New York Times reporter, who spent 85 days in contempt; and (3) Josh Wolf, a freelance video blogger, who spent 226 days. After discussing the history of federal shield legislation, this Note applies the 110th Congress's proposed Free Flow of Information Act to Leggett, Miller, and Wolf's cases in order to determine whether the journalists would even be protected by the Bill that their stories inspired. This Note concludes that, even if the Free Flow of Information Act were law when the journalists were subpoenaed, all three journalists would, nevertheless, not have found their confidential sources protected. In other words, the outcome would not have been any different-each journalist would still have served jail time. Finally, this Note recommends provisions that the media should demand in a federal shield law.