In 1972, Branzburg v. Hayes required the Supreme Court to consider whether the First Amendment to the United States Constitution conferred on journalists a right to quash grand jury subpoenas issued by the government. The Court held in a five-to-four opinion that it did not. Yet, in 2011, a federal district judge found that James Risen, a New York Times reporter, had a First Amendment reporters privilege that protected him from having to reveal his source for a book chapter about a secretive CIA operation. This judge is not alone in finding such a privilege in spite of Branzburg; indeed, many judges have come to the same conclusion.
This thesis, through an analysis of post-Branzburg cases at the federal courts of appeals level, attempts to map the current landscape. It finds that Branzburg jurisprudence is in tatters, with some courts of appeals finding a reporters privilege and others not. It further finds that the courts that do find a privilege fail to weigh the First Amendment interests in each case, opting instead for sweeping but vacuous pronouncements of the benefits of the First Amendment.
Taking this landscape under consideration, this thesis suggests that Branzburg is the problem not the solution and offers a way for courts to escape from under Branzburgs thumb by recognizing that subsequent case law has implicitly dismissed the presumption on which Branzburg is based. It further extrapolates from this subsequent case law the principle that the First Amendment is implicated when the government or a private party acts adversely to a speaker because of his speech. Having recognized that the First Amendment is implicated by subpoenas against journalists, it then argues that the only way to account for all of the interests involved is to identify and appraise the value of the First Amendment interests in light of First Amendment theory and weigh those interests against the countervailing interests. Finally, it suggests how this approach informs the Risen case.
| Identifer | oai:union.ndltd.org:LSU/oai:etd.lsu.edu:etd-04122013-170418 |
| Date | 18 April 2013 |
| Creators | Schafer, Matthew |
| Contributors | Reynolds, Amy, Mann, Robert, Sanders, Meghan, Coyle, Erin |
| Publisher | LSU |
| Source Sets | Louisiana State University |
| Language | English |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.lsu.edu/docs/available/etd-04122013-170418/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached herein a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to LSU or its agents the non-exclusive license to archive and make accessible, under the conditions specified below and in appropriate University policies, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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