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Keywords

constitutional law; media law; First Amendment; Branzburg; reporter's privilege; freedom of the press; journalism; shield laws; Fourth Amendment; subpoena; third party

Abstract

The modern constitutional and statutory framework permits the U.S. government to obtain journalists’ confidential source information and work product by secretly serving third-party service providers with subpoenas. While the First Amendment protects journalists and the Fourth Amendment guards against unreasonable government searches, new technology and the involvement of third parties complicate the balance between independent newsgathering and government access.

This Note examines reporters’ privilege jurisprudence stemming from the seminal U.S. Supreme Court decision Branzburg v. Hayes, which declined to recognize a categorical privilege. This Note also explores the subpoena power in the digital age as it converges with privacy doctrine through the Stored Communications Act.

This Note argues that Branzburg, which governs the use of the grand jury subpoena power against the press, should not control when journalists’ third-party record holders are implicated. It contends that the existing First Amendment precedent incidentally permits these secret subpoenas, which circumvent the constraints imposed by Branzburg. These subpoenas also run afoul of the Fourth Amendment because reporters maintain a legitimate privacy interest in their materials. This Note asserts that such subpoenas are per se unconstitutional under the Fourth Amendment, as they compel disclosure without notice.

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