The Shield and the Sword: The Press Between the Public Interest and the Illegal Interception of Private Communications

Journalism is not only under the attack of fake news and post-truth politics. Its main enemy comes from within. Malpractices of journalism such as the fabrication of sources and fake stories and illegal intrusion in people’s privacy are part of the equation that leads to people’s distrust in news organization.

This article addresses two very related topics that, nevertheless, have not been sufficiently studied as part of the same phenomenon: the reporter’s privilege to protect his sources’ identity and its connection with a journalist’s involvement in the illegal hacking or interception of private communications.

After reviewing most relevant case laws from the federal and state level, and all States that have enacted a Shield Law, the author recommends an exception to the reporter’s privilege when there is probable cause that the journalist participated in illegal gathering activities of secluded information. With this proposal, the purpose is to reconcile two of the most emblematic legal precedents for freedom of the press by the U.S. Supreme Court: Branzburg and Bartnicki.