After the First Amendment Fails: The Newsmen's Privilege Hearings of the 1970s

Abstract

The recent jailing and threatened jailing of journalists seeking to protect confidential sources has prompted Congress to reopen debate on legislation providing journalists with a statutory right of confidentiality. This article explores debates over eighty-six newsmen's privilege bills introduced in the House of Representatives between 1972 and 1975, after the Supreme Court of the United States decided Branzburg v. Hayes. The article identifies the primary policy differences, motives and perspectives of key advocates, and reasons for the failure of any bill to become law. It examines arguments for and against a privilege and the four major areas of policy disputes: the range of protections from absolutist to qualified protections, the problem of defining “journalist,” protection of only confidential information or all newsgathering material, and whether a federal privilege statute should apply to state proceedings. In doing so, the article provides historical context to contemporary legislative debates.