Starting from Scratch: The First Amendment Reporter-Source Privilege and the Doctrine of Incidental Restrictions

This Note examines reporters’ claims to a First Amendment reporter-source privilege in light of First Amendment doctrine as a whole. Part I briefly explains the current state of reporter-source privileges and the policies behind them. Part II then attempts to identify doctrinal support for the press’s claim to a First Amendment privilege. Part II rejects the notion that the First Amendment affords special protection to the press as an institution. A reporter’s status as a member of the institutional media is not irrelevant, however, and the well-established principle that the government may not target or single out the press for discriminatory treatment becomes the first cornerstone of the privilege proposed in Part V. Part II then analyzes claims to a reporter-source privilege in light of the incidental restrictions doctrine set forth in Arcara v. Cloud Books, Inc. Part II concludes that a reporter-source privilege may be justified where reporters can show that compelling the disclosure of sources’ identities (1) has a high impact on their First Amendment rights or (2) penalizes communicative activity.

Part III focuses on the first prong of the Cloud Books test and concludes that reporters will be unable to prove that compelling disclosure of their sources has a “high impact” on their First Amendment rights. Although reporters claim that the possibility of compelled disclosure will have a chilling effect on their activities, Part III argues that reporters probably will not be able to establish this claimed chilling effect with enough certainty to meet the requirements of the first part of the Cloud Books test.

Part IV considers the second prong of the Cloud Books test and argues that although the “penalization” prong may be difficult to apply on a case-by-case basis, this prong should protect the reporter-source relationship when it is the reporter’s speech that is singled out for punishment rather than the reporter’s knowledge of the .source’s identity. The principle that the government may not penalize a reporter’s speech is the second cornerstone of the privilege proposed in Part V.

Part V draws upon the two principles distilled from First Amendment doctrine in Parts II and IV to propose an analytical framework in which to evaluate claims to a First Amendment reporter-source privilege. Part V rejects the idea of an ad hoc application of these principles because a clearer test would save judicial time and avoid inconsistent results. Part V then demonstrates how the proposed test modifies and improves on the analysis favored by the circuit courts. Finally, Part V argues that a reporter should be protected by a qualified privilege only when the government moves to compel her source’s identity.