Theodore Campagnolo, The Conflict Between State Press Shield Laws and Federal Criminal Proceedings: The Rule 501 Blues, 38 Gonz. L. Rev. 445 (2003).[PDF] [Westlaw] [LexisNexis]
When a grand jury or a criminal prosecutor seeks disclosure of a journalist’s confidential sources or the information obtained from such sources, a journalist has an ethical duty to oppose such disclosure. In some states, a journalist can rely on press shield laws that protect a source’s identity or the information obtained from such sources. If, however, disclosure is sought in a federal criminal proceeding, these state-based press shield laws provide no protection to a journalist because of Rule 501 of the Federal Rules of Evidence.
This Article will demonstrate that there is no legal or historical rationale justifying the widely divergent results of disclosure or non-disclosure of a reporter’s source depending on whether the matter is brought in federal or state court. Because a journalist’s claim of privilege is wholly state-based, Congress should provide an exception to Rule 501 that would allow a reporter’s privilege in the forum state to apply in federal grand jury proceedings and criminal cases, just as it would in civil diversity cases. In this way, disclosure or non-disclosure of a journalist’s source would receive the same treatment whether the matter was investigated or prosecuted in state court or federal court…Read More