This comment first examines the recent cases in which a libel plaintiff was impeded by the use of a qualified privilege from obtaining the identity of news sources behind an allegedly defamatory story. It next discusses the historical development of the constitutional news-source privilege and concludes that neither traditional first amendment press clause doctrine nor the United States Supreme Court's decision in Branzburg v. Hayes is authority for such a privilege. This comment then points out that courts which nonetheless recognize a constitutional news-source privilege in civil cases have given the same protection to all sources, regardless of the publication's news-gathering value, at the expense of libel plaintiffs. These courts, in reaching their decisions, also have rarely considered the need or expectation of the source for confidentiality. This comment endorses source protection as necessary under certain circumstances. It proposes, however, that such protection be based on Rule 26(c) of the Federal Rules of Civil Procedure or its equivalent in a given jurisdiction. Rule 26(c), a discovery rule, gives a court discretion to protect parties and other persons from "annoyance, embarrassment, oppression, or undue burden or expense." The use of a court's discretionary power will, unlike the use of the qualified constitutional privilege, give the court more flexibility in determining when the need of libel plaintiffs to know the source of reports damaging to their reputations outweighs the need to protect the confidentiality of news sources.
David J. Smith,
News-Source Privilege in Libel Cases: A Critical Analysis,
57 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol57/iss2/6