Confidential Sources Reconsidered

For fifty years, the courts have debated whether the First Amendment guarantees of freedom of the press requires that journalists be allowed to protect confidential sources. Many state and federal courts have answered in the affirmative, creating a First Amendment “reporter’s privilege.” The Supreme Court has declined to recognize such a privilege, but has not foreclosed the possibility. This Article suggests that the constitutional guarantee can be honored without prescribing a constitutionally defined privilege. Whether freedom of the press requires protection of confidential sources is one question; what means should be chosen to protect them is another.

Courts should separate the two questions, deciding the first as a matter of constitutional law while leaving the choice of means largely to legislatures and common law resolution. Concerns about the scope and administration of the First Amendment privilege have deflected attention away from the underlying issue: whether compelled disclosure of sources abridges freedom of the press.