Robert's opening sentence contained this interesting phrase. It gets to the heart of the reason there is a compulsory process for gathering evidence in the 6th Amendment.
In searching for background, I found that most of what popped up related to the privilege journalists have in concealing their sources. The idea being that it is more important for the information reporters get on the promise of confidentiality is more important than the evidence that could be introduced in court.
In the chapter on the media, you'll see mention of Branzburg v Hayes, which helped establish this right, and the limits to it.
- Click here for the case.
Facts: Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement personnel. Branzburg was subpoenaed before a grand jury for both of the articles. He was ordered to name his sources.
Earl Caldwell, a reporter for The New York Times, conducted extensive interviews with the leaders of The Black Panthers, and Paul Pappas, a Massachusetts television reporter, who also reported on The Black Panthers, spending several hours in their headquarters were similarly subpoenaed around the same time as was Paul Branzburg.
All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing a privilege under the Press Clause, and were held in contempt.
Decision: In a fiercely-split decision, the Court ruled 5-4 against the existence of reportorial privilege in the Press Clause of the First Amendment. Writing for the majority, Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that "from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished."
He did not overlook the importance of a free press, however, and he established a test, citing Gibson v. Florida Legislative Investigation Comm., for deciding whether a reporter can be compelled to testify before a grand jury. For such a subpoena to have merit, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."
For more:
- Not Just "Every Man": Revisiting the Journalist's Privilege
Against Compelled Disclosure of Confidential Sources.
