Should the media be able to shield its
sources from a grand jury?
Hello Professor Brenner, I am a junior in High School. In
English class, we are currently doing a debate on the Media's ability to
shield its confidential sources. I am on the negative of this debate. We are
trying to approach it, with the fact that if confidential sources can go to
the media, they should be obligated to go to court. If sources that could
mean the difference in a case are shielded, it impedes justice. I was
curious as to your take on this stance, and the law when it comes to Grand
jury trials. Is this a valid argument, or do you have a better one we can
use. If you could e-mail me back I would be very appreciative. Thank You
very much for your time, and have a nice Thanksgiving.
In Branzburg v. Hayes, 408 U.S. 665 (1972), which you can find on
FindLaw, www.findlaw.com, the U.S. Supreme Court held that journalists
are not exempt from the duty to testify before a grand jury, even about
confidential sources. So, that supports your argument. Now, the U.S.
Department of Justice has adopted its own rule of restraint, under which
it tries to avoid subpoenaing journalists to testify, but the DOJ will
do so if the government needs the information.
You can also support your argument on this basis: If
a grand jury believes someone has information pertinent to an
investigation, it can subpoena that person directly. Why, therefore,
cannot a grand jury subpoena a reporter who has talked to someone who
has information pertinent to an investigation and ask the reporter who
he/she has talked to?
The contrary argument, as I am sure you know, is
based in the First amendment and/or in the idea that there should be a
privilege for reporters and their sources. The privilege really has not
been successful, and Branzburg pretty much nullifies the First
Hope that helps.