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tion, or nonconfidential unpublished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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