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First Amendment; reporter’s privilege; prior restraint; balancing test; censorship; source; journalist; journalism; press; confidential; subpoena; news; media; freedom of the press; fourth estate; newspaper; newsgathering; chilling; media; the Pentagon Papers; Washington Post; New York Times; Branzburg v. Hayes; shield law
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When The Fourth Estate’S Well Runs Dry, Megan L. Shaw
When The Fourth Estate’S Well Runs Dry, Megan L. Shaw
Brooklyn Law Review
The press is under fire. Members of the press often face subpoenas or similar court orders, compelling the disclosure of a source’s identity. By issuing media subpoenas, the government has effectively censored the press—the exact type of censorship that the Supreme Court held presumptively unconstitutional over eight decades ago in Near v. Minnesota. Yet the least protected—and most complicated—aspect of the newsgathering process is a reporter’s relationship with her source. For decades, journalists have tried to assert defenses to government compulsions on First Amendment grounds as well as by invoking a “reporter’s privilege,” a testimonial privilege similar to that of …