| The Bill of Rights, including the First Amendment was ratified by the states in 1791. Despite the passage of more than 200 years, the courts of this country have failed to adequately delineate the breadth of the amendment's protection for reporters in at least two areas that are important for reporters and how they perform their work. It is essential that the courts review these two areas and provide guidance for reporters so that they can vigorously perform their role as a watchdog on the governments of the United States. As long as the uncertainly is allowed to linger, reporters will be inclined to act cautiously to prevent encounters with the courts.; The two troublesome First Amendment issues identified in this dissertation are reporter's privilege, whether a reporter can accept information from a source and promise the source confidentiality without fear that a judge will coerce the reporter to disclose the identity of the source. The Supreme Court of the United States has taken the issue up one, more than 30 years ago, and left behind a decision that has been read alternately by various courts in this country. While the Court has found no reporter's privilege at the federal level, a privilege has been created or found in the constitutions in all but one state. In the aftermath of Sept. 11, 2001, a rash of subpoenas have been issues to reporters requiring them to identify confidential sources. This threatens to undermine the ability of reporters to use confidential sources to uncover information citizens of this country need to monitor the activities of their governors. A second troublesome legal tool is the collateral bar rule, the ability of a judge to issue an ex parte prior restraint, then, if the reporter disobeys the order even though it is obviously unconstitutional on its face and thus invalid the judge can hold the reporter in contempt of court. Whether the reporter can or cannot challenge the judge's order after disobeying it is uncertain as two different federal courts of appeals have considered the issue and ruled in opposing directions.; These legal uncertainties can have a chilling effect on reporters, inhibiting their vigor in pursuing government abuse and secrets. As a result, the First Amendment is unfinished. |
