Shielding the "Enemy of the People": Protecting the Reporter's Privilege in the Age of Social Media

Abstract

President Donald Trump and his surrogates regularly belittle media outlets that publish articles critical of the administration. Arguably, no newsgathering practice has undergone more scrutiny from the Trump Administration than the use of unnamed sources. During this time, journalists must understand the extent to which the law will protect their reporting and their valuable anonymous sources. Almost forty years ago, the United States Supreme Court held in Branzburg v. Hayes, in 1972 that a general federal reporter’s privilege does not exist. Robust reporter shield laws exist in individual states, but these privileges largely lag behind the digital media revolution. When a large percentage of Americans digest news through social media resources like Facebook and Twitter, how can they distinguish between a journalist worthy of protection and an ordinary Facebook friend or Twitter follower? This Note tracks the history of anonymous reporting, discusses the development of the reporter’s privilege, and considers how to ensure protections for modern journalists. This Note argues that to best protect digital journalists and social media users, Congress should enact a federal reporter’s shield that protects journalistic acts, explicitly includes digital media, and requires an intent to disseminate information to the public.