Demarcating the Right to Gather News: A Sequential Interpretation of the First Amendment
Duke Journal of Constitutional Law & Public Policy
The recent spate of cases in which reporters have been subpoenaed, fined, jailed, or otherwise disciplined has laid bare the divisions among the courts over the existence and scope of the “reporter’s privilege.” The cases have also exposed the doctrinal, historical, and theoretical infirmities of the broader law of newsgathering, which encompasses not only source relationships, but also rights of access to places and records, protections against civil and criminal liability for torts and crimes committed in the pursuit of news, and protections against government searches of newsrooms and phone records, among other things. Resolving these conflicts has grown more urgent with the democratization of media and the emergence of bloggers and other news providers who have challenged traditional conceptions of “journalists” and “the press.” To settle these controversies, this Article seeks to move past the courts’ desultory analyses, focus on core principles, and situate those assessments in the context of a particular approach to constitutional interpretation. This Article proposes a “sequential” interpretation of the First Amendment—an approach that assesses, in turn, the text of the Amendment, its history, its place in the broader constitutional structure, and its contemporary meaning in light of substantial social change. This approach draws upon conventional interpretive frameworks to show that there is abundant constitutional support to recognize most aspects of the right to gather news, including the reporter’s privilege, and that doing so does not require any interpretive contortions. However, recognizing some newsgathering rights depends on a more egalitarian definition of “journalist”—one that emphasizes the function served by newsgatherers, and not their social or professional status or credentials. And although there is a historical and constitutional foundation for many newsgathering protections, some access claims and liability defenses—particularly those that are dependent on an affirmative-rights construction of the First Amendment—are not constitutionally cognizable, despite their appeal as matters of policy.