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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

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.

Response:


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 Amendment argument.

Hope that helps.

SWB

2002

  

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