ERIC Number: ED194905
Record Type: RIE
Publication Date: 1980-Aug
Reference Count: 0
Ad Hoc Balancing Theory and the Journalist's Privilege: How Heavy Is the First Amendment?
Trevas, Harriet R.
In the United States Supreme Court's only decision on the question of journalists' protecting their confidential sources (the "Branzburg trilogy" of cases decided in 1972), Justice Lewis Powell emphasized the importance of "striking a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." Justice Powell thus summarized the ad hoc balancing theory of the First Amendment: When the First Amendment comes into conflict with another constitutional right, the two rights must be weighed and a decision made as to which takes priority. In the Branzburg trilogy, First Amendment rights were found to be outweighed by the Sixth Amendment right to compel testimony. Since the time of the Branzburg trilogy the pendulum of court decisions has swung back and forth between First Amendment protections and Fifth, Sixth, and Fourteenth Amendment rights. But many recent antipress decisions have caused journalists to become alarmed about the apparently eroding status of their First Amendment protections, leading many to seek some sort of privilege for themselves. Considering the merits and deficiencies of state-enacted shield laws and a proposed federal shield law, it appears that the inherent risks of these measures mitigate for having the journalists take their chances via the ad hoc balancing theory. (RL)
Publication Type: Information Analyses; Speeches/Meeting Papers
Education Level: N/A
Authoring Institution: N/A
Identifiers: Supreme Court
Note: Paper presented at the Annual Meeting of the Association for Education in Journalism (63rd, Boston, MA, August 9-13, 1980).