The Reporter's Confidentiality Privilege: Updating the Empirical Evidence after a Decade of Subpoenas
![handle is hein.journals/colhr17 and id is 63 raw text is: The Reporter's Confidentiality
Privilege: Updating The Empirical
Evidence After A Decade Of Subpoenas*
By
John E. Osborn**
I think that men living in aristocracies may, strictly speaking, do
without the liberty of the press: but such is not the case with those
who live in democratic countries. To protect their personal inde-
pendence I trust not to great political assemblies . . . or . . . the
assertion of popular sovereignty . . . [T]hese things may, to a certain
extent, be reconciled with personal servitude. But that servitude
cannot be complete if the press is free: the press is the chief democratic
instrument of freedom . . . at a time when the eye and finger of the
government are constantly intruding into the minutest details of
human actions .... 1
INTRODUCTION
The sixth amendment2 rights of litigants may collide with the first
amendment3 rights of the press and the public4 in a variety of factual and
. The author initiated the research for this article while completing an cxternship at The
Reporters Committee for Freedom of the Press in Washington, D.C. The author appreciates the
encouragement and assistance of Jack C. Landau, the Committee's Executive Director, and A.
E. Dick Howard, White Burkett Miller Professor of Law and Public Affairs at the University of
Virginia School of Law, but takes full responsibility for the article's content.
.. B.A. (1979) University of lowa;J.D. (1983) University of Virginia; law clerk to the Hon.
Albert V. Bryan, U.S. Court of Appeals for the Fourth Circuit (1983-84); Associate, Hale and
Dorr, Boston, Mass.
1. 2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 400-01 (Reeve trans. 6th ed.
1876).
2. U.S. CONST. amend. VI provides that [i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . to be confronted with the witnesses against
him . . . and . . . to have compulsory process for obtaining witnesses in his favor.
3. U.S. CONST. amend. I provides that Congress shall make no law . . . abridging the
freedom . . . of the press.
4. Cynics may claim that the press raises arguments under the aegis of the first amendment
merely to advance its own financial interests. But even commentators who have argued against
a newsman's confidentiality privilege have noted that few could disagree . . . that the public,](ViewImageLocal?handle=hein.journals/colhr17&div=8&collection=&method=preview&ext=.png&size=3)
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The Reporter's Confidentiality Privilege: Updating the Empirical Evidence after a Decade of Subpoenas
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