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, 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 the most relevant case law 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.