Protecting More than the Front Page: Codifying a Reporter’s Privilege for Digital and Citizen Journalists

"'The reporters who work for the Times in Washington have told me many of their sources are petrified even to return calls,' Jill Abramson, the executive editor of The New York Times, said ... on CBS's Face The Nation broadcast. 'It has a real practical effect that is important.'" (1) INTRODUCTION The stifling of investigative journalism stems in part from a torrent of stories in 2013 regarding the government's intrusive tracking of journalists' and individuals' cell phone records and e-mails without their knowledge. (2) The federal government also tracked two months of call records of more than twenty Associated Press phone lines. (3) In a leak probe regarding a news story about North Korea, the government surreptitiously obtained information about Fox News Chief Washington Correspondent James Rosen. (4) Officials monitored his "security badge access records to track the reporter's comings and goings at the State Department[,] ... traced the timing of his calls with a State Department security adviser suspected of sharing the classified report ... [and] obtained a search warrant for the reporter's personal emails." (5) In a secret affidavit, the Department of Justice named him an aider, abettor, and/or co-conspirator in disclosing national defense information. (6) These increased intrusions into investigative journalists chill the free flow of information. (7) In response to these interferences with the government, the Department of Justice released new regulations about how it will handle subpoenas of journalists in order to balance the interests of "protecting the American people by pursuing those who violate their oaths through unlawful disclosures of information and safeguarding the essential role of a free press in fostering government accountability and an open society." (8) Although these recent secret search warrants targeted journalists working for traditional media outlets, future search warrants or subpoenas will not be limited to traditional journalists, as digital journalists also increasingly report in-depth stories related to crime, national security, or the government in the modern media culture. Online and digital news sources continue to grow, (9) in part because traditional journalistic outlets lay off staff (10) and publish print editions less frequently as they move more content online. (11) Only 29% of people who participated in a 2013 Pew Research Survey had read a newspaper the previous day, down 18 percentage points since 2002. (12) In 2012, 34% of those surveyed received news online or from a mobile device. (13) Social media is also growing as a news source. Of those surveyed in 2012, 19% said they saw news stories on social networking sites the previous day, up from 9% in 2010. (14) Now, at least 50% of people in the United States have a tablet or smart phone. (15) Of those who own a tablet, 64% report getting news on a tablet, and 62% of smartphone owners said they received news on a phone. (16) These statistics highlight the reduction of barriers to gather, write, report, and share news with a broad base of people. It is now possible to write or record stories without being affiliated with a traditional news outlet. This Note argues that as digital news source access and use grow, the definition of journalists should be broadened to include individuals who are producing in-depth journalism in untraditional manners. Journalists and other supporters of a vibrant and free press believe that the First Amendment, state constitutions, statutory protections at the federal and state level, and common law privileges should protect reporters from being forced to reveal confidential sources or information during court proceedings. (17) Thus, reporters will have the opportunity to engage in more investigative journalism, increasing citizens' knowledge of what is happening locally, nationally, and internationally. (18) Additionally, a reporter's privilege prevents journalists from becoming an "investigative arm" of the government. …