07/05/2024
Outside of journalism circles, the reporter’s privilege suffers from an image problem. Critics often look at reporter’s shield laws and think that journalists are declaring that they are “above the law,” violating the understood standard that a court is entitled to “every man’s evidence,” as courts themselves often say.
But courts have always recognized the concept of “privileges,” allowing certain individuals to refuse to testify, out of an acknowledgment that there are societal interests that can trump the demand for all evidence. Journalists need to emphasize to both the courts and the public that they are not above the law, but that instead they must be able to remain independent, so that they can maintain their traditional role as neutral watchdogs and objective observers. When reporters are called into court to testify for or against a party, their credibility is harmed. Potential sources come to see them as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes.
Critics also contend that exempting journalists from the duty to testify will be detrimental to the administration of justice, and will result in criminals going free for a lack of evidence. But 48 states and the District of Columbia have shield laws or court-recognized reporters privileges, and the Department of Justice also imposes restrictions – most recently updated and strengthened in 2021 – on federal agents and prosecutors who wish to subpoena journalists. And yet there has been no indication that the courts have stopped working or that justice has suffered.
RCFP attorneys authored this introduction, with special thanks to legal intern Britland Kenworthy. Last updated Nov. 5, 2021 The Reporter’s Privilege Compendium, first posted online in 2002, is the most detailed examination available of the reporter’s privilege — the right not to be compelled ...