Ohio State Law Journal
This Article contends that contemporary arguments about the reporter's privilege are increasingly situated within a divided framework in which protections for confidential and nonconfidential information are treated as separate interests that lack a shared theoretical justification. This is both a cause and consequence of a broader tendency among judges, legislators, journalists, and lawyers to emphasize policy-based conceptions of the privilege that are focused on case-specific calculations of harms and benefits, rather than principle-based conceptions focused on journalistic autonomy and the need for a structural separation of press and government. Policy arguments present the privilege as a narrow, utilitarian device for eliciting public-interest disclosures from sources, not as a fundamental right tied to the investigative and expressive autonomy of those who gather and report news. Policy-based conceptions of the privilege are therefore more vulnerable to uneven applications, more likely to be reserved for particular types of proceedings, more likely to be balanced away in the face of competing social concerns, and more likely to exclude non-traditional journalists. In addition, policy-based conceptions devalue the journalistic foundations of the privilege by tying its value to the preservation of sources" expression while at the same time minimizing the effect of subpoenas on reporters' expression. This Article shows that lawyers and legal scholars have also narrowed their conceptions of the privilege-sometimes unwittingly and sometimes as part of a deliberate, "'pathological" effort to preserve some core protections by surrendering others. In doing so, they have contributed to the broader conceptual compression that is evident in the scholarly literature, public discourse, and debates over proposed state and federal shield laws, which increasingly reduce the privilege to merely a protection for confidential sources and that permit a host of other qualifications and exceptions.