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17 Comm. Law. 1 (1999-2000)

handle is hein.journals/comlaw17 and id is 1 raw text is: I0 Communications Publication of the Forum on Communications Law American Bar Association Volume 17, Number 1, Spring 1999 wv e r Retooling the Federal Common-Law Reporter's Privilege BY THEODORE J. BOUTROUS, JR., AND SETH M.M. STODDER Federal courts continue to struggle with whether and under what circumstances journalists have a privilege in criminal and civil cases brought in federal court to refuse to divulge the identity of con- fidential sources, confidential informa- tion, or nonconfidential unpublished information. Most states have enacted statutory or state constitutional provi- sions explicitly establishing such a privilege,1 but Congress has not enact- ed a federal statute specifically creating such a privilege in federal cases. Most federal courts have concluded that the First Amendment provides a qualified privilege against the compelled disclo- sure of confidential sources and infor- mation in some instances.2 Others, however, have refused to recognize such a privilege, largely based on the 1972 decision in Branzburg v. Hayes,3 in which the Supreme Court allowed enforcement of a federal grand jury subpoena to a reporter. In 1996 a feder- al district court in Arkansas rejected the existence of a privilege and refused to quash a grand jury subpoena from inde- pendent counsel Kenneth Starr for out- takes from ABC's interview with Whitewater figure Susan McDougal.4 During the year past, the Second Cir- cuit in Gonzales v. NBC5 and the Fifth Continued on page 22 Chair's Column .................................... 2 Viewpoint: Interlocutory Appeals .................. 18 Fourth Annual Conference ......................... 3 Courtside ...................................... 20 Neutral Report Privilege in California ................ 8 Secrecy (Book Review) .......................... 28 FTC and W ireless Carriers ........................ 11 Bibliography ................................... 30

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