Testimonial protections for journalists, while essential to core First Amendment values, occupy a remarkably precarious position in America’s legal landscape. When effective, such protections ensure the flow of information from source to journalist, allowing reporters to honor their assurances of confidentiality—an important feature of modern newsgathering.

But over the half-century since the Supreme Court’s seminal decision on the issue, the landscape of protections for journalists’ confidential source material has morphed into a bewildering patchwork that stymies journalists’ reliance on them. So while many—including lawyers at the Knight Institute—have recently argued the case for strong federal media shield legislation in the wake of the Trump administration’s seizure of journalists’ records, there is also a more prosaic, though less frequently discussed, reason to adopt federal shield legislation: to make clear when journalists can expect to receive protection under federal law and when they can’t. With the Supreme Court apparently unwilling to resolve the confusion, Congress should act.

As it currently stands, the Supreme Court has offered scant guidance about the extent of First Amendment protection afforded to journalists’ source materials. In 1972, the Court issued its landmark—yet ambiguous—opinion on the topic in Branzburg v. Hayes. That case consolidated several lower court cases in which journalists reporting on illicit hashish production and the Black Panther Party were subpoenaed by grand juries seeking to compel disclosure of the identities of their sources. In a 5-4 decision, the Supreme Court declined to recognize a First Amendment privilege that would allow newsgatherers to refuse to answer grand jury questions about their sources’ criminal conduct. But even while rejecting this kind of reporter’s privilege, the majority acknowledged that “news gathering is not without its First Amendment protections”––although it declined to articulate what those protections might be, beyond indicating that the First Amendment might protect journalists where prosecutors issued subpoenas in bad faith.

Branzburg’s ambiguity results in large part from the puzzling concurrence of Justice Powell, who gave the majority its fifth vote. In an opinion that Justice Stewart, writing in dissent, called “enigmatic,” Powell suggested that the case did implicate First Amendment interests. Despite the fact that the majority opinion explicitly rejected a First Amendment balancing test, Powell appeared to advocate for one, arguing that “the balance of … constitutional and societal interests on a case-by-case basis” should protect journalists in some contexts—for example, where the connection between the request and the sought-after information was attenuated. In some respects, Powell’s opinion seems to hew more closely to Justice Stewart’s dissent—which argued that the disclosure of confidential sources should be subject to a balancing test weighing the likelihood that a reporter had “clearly relevant” information, the importance of the inquiry, and whether there were other means of acquiring the information—than to the majority opinion.

Lower courts, predictably, have struggled to make sense of Branzburg’s murky lessons. Importantly, though, most circuits do read Branzburg as leaving room for a reporter’s privilege of some sort.  

Lower courts, predictably, have struggled to make sense of Branzburg’s murky lessons. Importantly, though, most circuits do read Branzburg as leaving room for a reporter’s privilege of some sort, and have adopted some form of balancing test along the lines sketched in Justice Stewart’s dissent. But the contours of these privileges vary widely: They have different scopes, they apply differently under different circumstances, and they use language of different strengths in the tests they articulate.

Consider the issue of whether the First Amendment reporter’s privilege extends to criminal investigations. Journalists who report on government leaks or use assurances of confidentiality to gain information about alleged criminal activity have at times been subpoenaed to provide information to criminal investigators—essentially becoming conscripted government factfinders. Whether a qualified reporter’s privilege exists in this context is an open question in several circuits, and those circuit courts that have opined are split. The U.S. Courts of Appeals for the First, Second, Third, Ninth, and Eleventh Circuits, for example, do recognize a qualified reporter’s privilege in the criminal context. But the Fourth and Fifth Circuits offer a First Amendment reporter’s privilege only in civil cases. The Seventh Circuit, meanwhile, declined in McKevitt v. Pallasch (2003) to recognize any special testimonial privileges for reporters, holding instead that “courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances.”

Federal trial and appellate courts are split on several other important issues as well. For example, courts differ regarding whether only information given under assurances of confidentiality should be protected. Some circuits extend protection only where such assurances have been made, while others extend protection regardless, at least in the civil context. There’s also inconsistency around the strength of the language supporting the privilege—how First Amendment balancing tests are worded, for example. As Professor Christina Koningisor writes, aside from the basic point that the government “cannot compel confidential information in bad faith,” judges and scholars “have diverged on virtually every other” aspect of Branzburg’s meaning. In a 2013 dissent in United States v. Sterling, Judge Roger Gregory of the Fourth Circuit nicely summed up the existing status quo: “In short, Justice Powell’s concurrence and the subsequent appellate history have made the lessons of Branzburg about as clear as mud.”

The absence of clear, strong First Amendment protection imposes an upstream burden on core First Amendment interests. When confidential sources lack protections, fewer come forward, and the flow of information stops at the source. And today, confidential sources are often crucial to journalists’ reporting on the activities of government itself—a dynamic that did not enter into the Branzburg Court’s consideration, given the facts of the case.

But the variability of existing federal law means that reporters cannot readily rely on its protections as they work across state lines––which limits their ability to do work that the public needs them to do. Congress should step in. A strong federal shield law would not only protect the freedom of the press and Americans’ rights to know what their government is up to—it would clean up a longstanding legal mess in the federal courts.