| When the Supreme Court held in Branzburg v. Hayes that reporters had no constitutional privilege to refrain from cooperating in criminal justice proceedings, it reopened debate about the proper role of the press in a democracy. Journalists claimed without privilege to withhold the identity of sources, reporters would face insurmountable obstacles in the newsgathering process, the "chilling effect." Concurrent social changes caused an increase in investigative reporting, the reporting most affected by court decisions limiting journalist's privilege. Thus, detecting a measurable chill presented methodological problems. This dissertation used several approaches to assess the chilling effect by studying the process of subpoenaing journalists as a proxy. Lawyers, editors and reporters were interviewed at two newspapers, the Chicago Tribune and the Miami Herald. A more general survey was conducted of lawyers and editors at 10 large metropolitan newspapers, half in states with shield laws and half in states without them. The studies identified evolution of case law establishing limited media privilege, directly linked to an aggressive network of media lawyers who argued the journalists' case in local and higher courts. Shield laws alone do not affect journalistic behavior or that of their adversaries. Rather, "shield policy," an amalgam of case law, statutes and the policy of public officials determines the status of reporter's privilege in a given jurisdiction. The Branzburg decision resulted in increased legal costs for newspapers, especially observable as diversion of time and resources from the business of news gathering. The possibility that reporter's privilege might reduce the information flow to the criminal justice system is moot. Even when faced with prison, reporters do not expose their confidential sources. Subpoenaing journalists fails as public policy: it is expensive to both journalists and jurists, diverts substantive issues and does not yield the information sought from reporters. Weighing each subpoena on its merits generally has resulted in adequate protection for journalists and their sources. The high costs, however, suggest the government ought to exercise great restraint in subpoenaing journalists, imposing on journalists an equal burden of restraint in using confidential sources judiciously and honestly. |
