Forty years after Branzburg v. Hayes, much to debate, panelists say

By Jessica Haney, BAJ’10, Indiana University School of Journalism
Forty years after the controversial Supreme Court ruling on the First Amendment case Branzburg v. Hayes, much is left open for debate.
“The law is a little bit uneven, to put it mildly,” said Anthony Fargo, director of the Center for International Media Law and Policy Studies at the School of Journalism.
Three professors and a lawyer gathered at the Union League Club in Chicago Oct. 28 for “Branzburg v. Hayes at 40: The Evolution of the Journalist’s Privilege,” the first event organized by the center, which launched in August. The College of Communication at DePaul University and Union League Club’s Public Affairs Committee were co-hosts.
In the 5-4 Branzburg v. Hayes decision, the Supreme Court ruled against a reporter’s privilege to keep confidential sources anonymous, declaring that three journalists were legally obligated to comply with the subpoenas they were issued and testify in front of a criminal grand jury.
However, Justice Lewis Powell’s concurrence acknowledged the “limited nature” of this decision, stating that these rulings should be made on a case-by-case basis.
“We still argue that Justice Powell’s concurrence favors a balancing test,” said panelist Chuck Tobin, a partner at Holland & Knight and chair of the law firm’s media practice team. Tobin encouraged the ruling to be read as a 5-4 decision in favor of some kind of protection for journalists and their confidential sources.
While smaller court circuits have taken care in balancing the reporter’s privilege with compelling subpoenas, journalists haven’t had as much success in the federal courts.
“Unfortunately the history has been pretty bleak,” said Tobin, who worked on getting a federal shield law passed before WikiLeaks launched in 2006.
One issue in passing the federal shield law, which would mandate protection for journalists and their confidential sources, was a lack of data regarding the sheer number of subpoenas that news organizations receive.
“Journalists were saying there’s an avalanche of subpoenas,” said panelist RonNell Andersen Jones, an associate professor of law at Brigham Young University.
Legislators initially viewed the law as “a solution in search of a problem.” Jones took it upon herself to perform an empirical study addressing the fear of subpoenas and the impact they have on newsgathering.
The data revealed that subpoenas are issued to the media with remarkable regularity, said Jones. She also concluded that they have a substantial impact on newsgathering. For one, news organizations fear the financial impact associated with a legal battle. Subpoenas also impose a practical limitation on the watchdog function of the media, said Jones. They may cause journalists to question whether an investigative piece is worth a looming legal battle.
Worry that a chilling effect from court decisions like Branzburg v. Hayes will interrupt the newsgathering process is a legitimate concern. Jones hypothesized that the increase in subpoenas issued to news organizations resulted in the decrease of the use of confidential sources. However, the direct relationship was not supported.
“When asked, none of these newsroom leaders were saying ‘because we fear a subpoena,’” said Jones.
Rather, journalists prefer not to use confidential sources in order to preserve the integrity of their work. Readers are suspicious of anonymous sources, said Jones. There has been a cultural shift in the willingness for attorneys to issue subpoenas, as well as in the way readers evaluate sources of news.
“Branzburg really was decided at this incredibly unique time in American history,“ said Jones. It was 1972, a heyday for journalism among events such as the Watergate scandal and trusted journalists like Walter Cronkite.
“I don’t think media law is as intuitive to judges these days,” said Jones, citing an example of when Justice Kennedy needed clarification on basic functions of text messaging.
Today, media has evolved to include the Internet and “journalist” is not so easily defined. Thus, recognizing a reporter’s privilege in an age when reporting is commonly accessible demands a more nuanced interpretation of the Branzburg v. Hayes ruling from the court system.
Laws weren’t written for the Internet.
“That’s where you see a lot of these cases break down,” said panelist Jason Martin, an assistant professor of communication at DePaul University who received his doctorate at the IU School of Journalism. Martin summarized several recent court cases concerning journalists’ protection in subpoena situations, many of which struggle to define a journalist, journalistic content and confidential sources.
“Do we really want the courts to answer that question?” asked Tobin. A court definition of journalist or journalism could place limitations on the entire industry. And inevitably, journalism and the role of journalist will evolve over time.
“The real world is significantly more layered and more complex than what the court case delivered,” said Jones.
The Center for International Media Law and Policy Studies plans to host more panel discussions in the future, said Fargo, who moderated the panel discussion. In addition to events, the center focuses on research projects and public education about free expression in Indiana as well as on the national and international stage.