Journalists' Privilege: Overview of the Law and Legislation in the 109th and 110th Congresses [September 28, 2007] [open pdf - 104KB]
"In Branzburg v. Hayes, the Supreme Court wrote journalists claim 'that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.' The Court held, nonetheless, that the First Amendment did not provide even a qualified privilege for journalists to refuse 'to appear and testify before state or federal grand juries.' The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of 'grand jury investigations ... instituted or conducted other than in good faith.... Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification.' Though the Supreme Court concluded that the First Amendment does not provide a journalists' privilege in grand jury proceedings, 49 states have adopted a journalists' privilege in various types of proceedings; 33 have done so by statute and 16 by court decision. Journalists have no privilege in federal proceedings. […] Congress has considered creating a journalists' privilege for federal proceedings, and bills to adopt a journalists' privilege have been introduced in the 109th and 110th Congresses, in both the House and the Senate."
CRS Report for Congress, RL34193