Olivia S. Hiltbrand, Ohio State University College of Law, is publishing Protecting Promises: Shielding Journalists Against Compelled Disclosure in the First Amendment Law Review: Summer Spotlight (forthcoming 2025). Here is the abstract.
In recent, high-profile cases, prosecutors have sought confidential or off-the-record reporting materials from journalists-and judges have granted that access. This alarming trend raises grave concerns for journalists, who must be able to make and keep promises to their sources, whether that involves off-the-record information or keeping a source’s identity confidential. Although nearly all states offer some protection for journalists via shield laws or judicial decisions, some offer only qualified protection. On the federal level, the situation is more bleak: the U.S. Supreme Court has not recognized a reporter’s privilege within the First Amendment, federal circuit courts resolve these cases inconsistently, the most recent Congress to consider a federal shield law failed to enact it, and the Federal Rules of Evidence contain just a single privilege rule, which does not address journalists in the context of testimonial privileges. These gaps put journalists and their confidential sources at risk—at a time when their work is critically important.
Download the article from SSRN at the link.