by Matthew L. Schafer
I have finally finished my thesis, Speak, and Speak Immediately: The Risen Subpoena, the Executive Branch, and the Reporter’s Privilege. I hope to write an abridged version shortly, but law school is currently demanding most of my attention – or most of my procrastination anyway. In the meantime, you can read the abstract below or read the thesis here.
In 1972, Branzburg v. Hayes required the Supreme Court to consider whether the First Amendment to the United States Constitution conferred on journalists a right to quash grand jury subpoenas issued by the government. The Court held in a five-to-four opinion that it did not. Yet, in 2011, a federal district judge found that James Risen, a New York Times reporter, had a First Amendment reporter’s privilege that protected him from having to reveal his source for a book chapter about a secretive CIA operation. This judge is not alone in finding such a privilege in spite of Branzburg; indeed, many judges have come to the same conclusion.
This thesis, through an analysis of post-Branzburg cases at the federal courts of appeals level, attempts to map the current landscape. It finds that Branzburg jurisprudence is in tatters, with some courts of appeals finding a reporter’s privilege and others not. It further finds that the courts that do find a privilege fail to weigh the First Amendment interests in each case, opting instead for sweeping but vacuous pronouncements of the benefits of the First Amendment.
Taking this landscape under consideration, this thesis suggests that Branzburg is the problem – not the solution and offers a way for courts to escape from under Branzburg’s thumb by recognizing that subsequent case law has implicitly dismissed the presumption on which Branzburg is based. It further extrapolates from this subsequent case law the principle that the First Amendment is implicated when the government or a private party acts adversely to a speaker because of his speech. Having recognized that the First Amendment is implicated by subpoenas against journalists, it then argues that the only way to account for all of the interests involved is to identify and appraise the value of the First Amendment interests in light of First Amendment theory and weigh those interests against the countervailing interests. Finally, it suggests how this approach informs the Risen case.