Confidentiality and Shield Law
The Branzburg vs Hayes case has been argued and decided in 1972. The issue in the case was whether the shield law and the freedom of speech and press guaranteed by the First Amendment protect newsmen against the requirement to testify before the state (Branzburg vs Hayes, 1972). In particular, Branzburg vs Hayes reviewed the judgments of the Kentucky Court of Appeals, involving petitioner Branzburg and a staff reporter for the Courier-Journal, a daily newspaper published in Louisville, Kentucky. Therefore, the case has become a prominent precedent, which is used in other cases regarding the issue of confidentiality or in appeals to shield law. The consideration of this case highlights major legal implications of the work of journalists regarding the confidentiality of sources and the promise of anonymity.
The judicial system’s approach to media varies depending on the type of medium, the principal distinction being between the print and the electronic media (Blevins & Barrow, 2009). Therefore, Blevins and Barrow (2009) suggest that medium-specific rationales used by the Supreme Court in the interpretation of the First Amendment should be used in relation to new media, the Internet, either. In particular, what makes print media different from broadcast is that due to the scarce nature of the electromagnetic spectrum the later should be demanded to be more fear and, thus, requires more government interventions. Blevins and Barrow (2009) believe that according to such medium-specific rationale, Internet should be understood as participatory form of mass speech and receive the least intervention from the state.
As evident from the Branzburg vs Hayes case, executing their right to free speech and expression, journalists may face considerable ethical dilemma. This happens due to the intersection of numerous interests. The journalists aim at the satisfaction of public need in information, which makes them find the sources, which are able to give timely, relevant and interesting facts. However, since sources may not want to reveal their identities, the journalists may promise them confidentiality even though they risk being held personally responsible. While journalists’ testimony may harm the sources, it can benefit the police and the state, helping it to prosecute relevant cases.
There are a number of legal mechanisms of compelling journalists to testify. First, if a journalist has been subpoenaed to name the confidential source to a grand jury but refuses to do so, he is held in contempt of court and goes to jail or is forced to pay (Chapter 10). The same measures are applicable when the journalists refuse to turn over the notes, photographs and videotapes, which are ordered by the court as relevant to the case. For example, it was for refusing to present the videotape from the demonstration that freelance blogger Josh Wolf spent 226 days in jail, which is the longest term served by a journalist (Chapter 10). On the other hand, if the journalist gives a promise of confidentiality to a source and then reveals the informant’s identity in court, to the grand jury or by publishing …
