A House Divided: Earl Caldwell, The New York Times, and the Quest for a Testimonial Privilege

With a Democrat in the White House and strong Democratic majorities in both the House and Senate, proponents of a federal “shield law” for reporters are hopeful that the 111th Congress will finally do what earlier Congresses have failed to accomplish: enact a statutory testimonial privilege to enable journalists to protect their confidential sources. Until it does, however, federal prosecutors will be permitted to subpoena members of the working press to appear before grand juries and other tribunals and force them to identify all manner of whistleblowers, ax-grinders, traitors, patriots, and garden-variety leakers. Once again, journalists will argue they have a First Amendment right to protect their sources as essential to gathering the news. And once again, the argument will probably fail.