Document Type

Article

Publication Date

2011

Abstract

In the digital age, the news media gives voice to anonymous speakers in two ways: reporters may extend confidentiality to sources in exchange for newsworthy information, or a news website may host an online comment function that allows readers to post their reactions to content pseudonymously. Of these two groups of anonymous speakers, only online posters enjoy certain First Amendment protection against a subpoena seeking disclosure of their identities.

The reporter’s privilege has always been legally defined as the professional privilege of a reporter to maintain the confidentiality of his sources. Yet as with all evidentiary privileges, the reporter’s privilege serves both private and public ends. Historically, state statutes and state common law have protected the private arrangement that enables sources to disclose information without fear of reprisal, and journalists to gain newsworthy content, because this relationship furthers the free flow of information to the public. By contrast, protection for anonymousspeakers has always been rooted in the First Amendment under a concern that forced identification may chill speech on public issues, and would violate the principle of speaker autonomy.

Yet the distinction between the speech activity of confidential news sources and anonymous political speakers is not as sharp as history would draw it. One might consider a reporter “the surrogate of the third party speaker who wishes to remain anonymous.” Under this view, a source’s interest in anonymity is “qualitatively different and far more compelling than [the interests] of a reporter” because revelation of the source’s identity exposes the source to political reprisal, while only damaging the reporter’s future capacity for newsgathering.

Comments

Winner of the 2012 Andrew D. Fried Memorial Prize.

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