Privacy of Inquiry and the First Amendment: Towards a Testimonial Privilege for Information Gathering


The journalist’s privilege has generated considerable controversy for a number of years. Most of its advocates see it primarily as a tool to be used by the press. The advocates of the journalist’s privilege argue that the”predominant purpose” of the first amendment is “to preserve an untrammeled press as a vital source of public information.” They claim that its primary justification rests on the belief that it encourages confidential sources to confide in professional journalists, thereby furthering the utilitarian objective of increasing the flow of sensitive information to the public. The privilege is less important for nonprofessional journalists and authors, because they are not engaged in the full time occupation of conveying information to the public.

The courts have responded tepidly to the suggestion that society should grant professional journalists a special testimonial privilege not available to members of the general public. There are two reasons for this lack of enthusiasm. First, the courts reject the utilitarian justification advanced by advocates of the journalist’s privilege because society will not necessarily be better off, and in fact might be worse off, if journalists have the privilege to refuse to testify in court. For example, the societal interest in information flow carries little weight when, in a criminal proceeding, a party needs the journalist’s confidential information to establish the guilt or innocence of he defendant. Second, since the privilege traditionally is intended only for professional journalists, it is inconsistent with the fundamental egalitarian-ism inherent in the first amendment.

There is another theory on which to base the journalist’s privilege which suffers from neither of these inherent weaknesses. This theory shall be called a rights-based rationale because it posits that the privilege is a right which all individuals enjoy regardless of whether society benefits. Since the privilege would not serve utilitarian ends, opponents could not argue for limitation on its application in order to make society incrementally better off. Moreover, since the privilege would be available to anyone engaged in information gathering for professional or personal reasons, it would be consistent with the fundamental equality which underlies the first amendment. Although the courts have institutional reasons for not recognizing the privilege’s full reach in the absence of a statute, a well-drawn statute which creates an information gatherer’s privilege based on this new rights-based rationale might receive a warmer reception than have statutes based on the traditional utilitarian rationale.

This note will explore the information gatherer’s privilege as it applies in the context of a criminal proceeding. After summarizing a case in which an author sought first amendment protection for his sources and notes, the note will analyze the traditional utilitarian rationale for the journalist’s privilege in order to expose its weaknesses. The note will then attempt to weave from existing commentary and legal precedent the basis for a much broader rights-based information gatherer’s privilege. Hopefully, this will lead to the development of some views on the appropriate roles of legislatures and the courts in administering the privilege. The legislatures should enact, and the courts should respect, privilege statutes which protect the first amendment right of all citizens to withhold from arbitrary exposure before a grand jury or trial court private papers and sources relating to the formulation and expression of their political views.

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